Chapter 15: Linguistically Appropriate and Culturally Competent Services. Limited English Proficiency and Language Rights Overview

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1 Chapter 15: Linguistically Appropriate and Culturally Competent Services W ith a large percentage of Medi-Cal beneficiaries limited in their ability to understand spoken and written English, access to medical care in the languages that beneficiaries understand is vital. At both the federal and state levels, legal requirements to provide access for limited-english proficient (LEP) persons have existed for many years. Federal laws apply to federally funded programs and individuals and businesses that receive federal funding like the Medi-Cal program and Medi-Cal providers. For example, as a federal fund recipient, the Medi-Cal program must comply with Title VI of the 1964 Civil Rights Act. 1 As one of the most racially and linguistically diverse states in the country, California has long recognized the critical importance of ensuring access for LEP persons by enacting numerous laws and policies specifically addressing access for LEP persons. Advocates can use many of these requirements to ensure access to language assistance services for Medi-Cal beneficiaries. In this chapter, linguistic access rights of beneficiaries and the pursuant provider and state responsibilities will be discussed. The most relevant federal and California requirements that support the provision of interpreter and translation services for LEP patients, with a particular emphasis on patients who qualify for Medi-Cal, will be discussed. Advocacy and enforcement of these rights and responsibilities can help to ensure that Medi-Cal beneficiaries receive safe, appropriate care to which they are entitled. Limited English Proficiency and Language Rights Overview According to the 2006 American Community Survey, there are close to 55 million people, or 19.1 percent of the U.S. population, who speak a language other than English at home, with over 24 million speaking English less than well, a group of people generally referred to as LEP. 2 In California, there are over 14 million who speak a language other than English, or 42.5 percent of California s population, with close to 7 million, or 47.1 percent who are considered LEP, which is well over the national average. 3 Among Medi-Cal recipients, over 50% speak a language other than English at home, 4 and 77% speak English less than very well and would be considered LEP U.S.C. 2000d (2007)( No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ). 2 U.S. Bureau of Census, 2006 American Community Survey, Selected Social Characteristics in the United States: 2006 (available at &_county=&_citytown=&_state=&_zip=&_lang=en&_sse=on&activegeodiv=&_useev=&pctxt=fph&pgsl=010 &_submenuid=factsheet_1&ds_name=dec_2000_saff&_ci_nbr=null&qr_name=null&reg=null%3anull&_keyw ord=&_industry= and S_2006_EST_G00_DP2&_lang=en&_sse=on. 3 U.S. Bureau of Census, 2006 American Community Survey, Selected Social Characteristics in California: 2006 (available at; qr_name=acs_2006_est_g00_dp2&-ds_name=acs_2006_est_g00_&-tree_id=306&-redolog=false&- _caller=geoselect&-geo_id=04000us06&-format=&-_lang=en and treet=&_county=&_citytown=&_state=04000us06&_zip=&_lang=en&_sse=on&activegeodiv=geoselect&_use EV=&pctxt=fph&pgsl=010&_submenuId=factsheet_1&ds_name=ACS_2006_SAFF&_ci_nbr=null&qr_name=null

2 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-2 When LEP beneficiaries attempt to access the Medi-Cal program, they are likely to confront language and cultural barriers. In many cases, LEP patients are expected to bring their own interpreters, despite federal and state laws requiring the availability of qualified language assistance services. LEP beneficiaries must be able to communicate effectively with their health care providers for a number of reasons. Limited English proficiency among patients can result in the provision of substandard health care due to inaccurate or incomplete information. LEP populations disproportionately underutilize less expensive and quality-enhancing preventive care. In addition, an inability to comprehend the patient, mixed with a fear of liability, may lead health care providers to avoid LEP patients or, in the alternative, to order expensive, otherwise avoidable tests. 6 Title VI of the Civil Rights Act of 1964 As noted above, Title VI states that no federally funded program, such as Medi-Cal, can discriminate on the basis or race, color or national origin. 7 Title VI s ban on national origin discrimination has been interpreted by the court to include protections for LEP persons. 8 The U.S. Department of Health and Human Services (DHHS), Office for Civil Rights (OCR), which is the entity that enforces Title VI for DHHS, has stated that federal fund recipients include any entity that participates in any federal program, such as Medicare, Medi-Cal or Healthy Families. This includes the Department of Health Care Services (DHCS), most county and local health and welfare agencies, hospitals and clinics, managed care organizations, nursing homes, mental health centers, senior citizen centers, and any other programs that receive federal financial assistance, as well as their contractors, subcontractors or vendors. 9 To help federal fund recipients in understanding their obligation to LEP persons, OCR issued a policy guidance, Title VI Prohibition Against National Origin Discrimination as It Affects Persons With Limited-English Proficiency (OCR LEP Guidance). 10 &reg=null%3anull&_keyword=&_industry=. 4 See 5 California Health Interview Survey query available at the Los Angeles office of the National Health Law Program. 6 According to the Institute of Medicine (IOM) Report, language barriers can affect the delivery of adequate care through poor exchange of physician instruction, poor shared decision-making, or ethical compromises, and result in decreased adherence to medication regimes, poor appointment attendance, and decreased satisfaction with services. IOM, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health, at (2002). See also Perkins et al., Ensuring Linguistic Access in Health Care Settings: Legal Rights and Responsibilities, at , National Health Law Program (Aug. 2003) (hereinafter NHeLP ELA Manual) U.S.C. 2000d 8 Lau v. Nichols, 414 U.S. 563 (1974)(Court ruled that a public school's failure to provide English language instruction to Chinese students who did not speak English violated Title VI) Fed. Reg. at A recent U.S. Supreme Court case, Alexander v. Sandoval, 121S. Ct (2001), severely limits the ability of a plaintiff to bring a private right of action for disparate impact claims pursuant to Title VI. The impact of this case highlights the importance of using the Office for Civil Rights' administrative complaint process, as well as other state remedies, to receive linguistically-appropriate health care services Fed. Reg. at On August 11, 2000, President Clinton issued Executive Order 13166, "Improving Access to Services for Persons with Limited English Proficiency." 65 FR (Aug. 16, 2000). Under that order, every federal agency that provides financial assistance to non-federal entities was required to publish guidance on how their recipients can provide meaningful access to LEP persons and thus comply with Title VI regulations forbidding funding recipients from "restrict[ing] an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program" or from "utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing

3 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-3 The OCR LEP Guidance, which bases its guidelines on the Department of Justice s guidance, 11 requires that DHCS and Medi-Cal providers take reasonable steps to ensure that LEP beneficiaries have meaningful access to the Medi-Cal program and services. What constitutes appropriate language assistance depends on the factual situation of the entity, also known as the totality of the circumstances test. 12 Similar to the DOJ guidance, the factors that OCR weighs include: The number or proportion of LEP persons eligible or likely to be served, by the program, using program-specific data along with census, school, state and local, and community-based data from the relevant service area. The frequency with which LEP persons come into contact with the program, activity or service. The nature and importance of the program or service to beneficiaries. The resources available to the fund recipients and costs of compliance. 13 DHHS notes that the four-factor analysis necessarily implicates the mix of language services, that is, whether oral interpretation and/or written translation services will be offered. 14 The correct mix should be based on what is both necessary and reasonable in light of the four factors. Oral interpretation. The Guidance provides specific information about oral interpretation. It describes various options available for oral language assistance, including the use of bilingual staff, staff interpreters, contracting for interpreters, using telephone interpreter lines, 15 and using community volunteers. It notes that interpreters need to be competent, though not necessarily formally certified. The Guidance allows the use of family members and friends as interpreters but clearly states that an LEP person may not be required to use a family member or friend to interpret. Extra caution should be taken when the LEP person chooses to use a minor to interpret. Recipients are asked to verify and monitor the competence and appropriateness of using the family member or friend to interpret, particularly in situations involving administrative hearings; child or adult protective investigations; life, health, safety or access to important benefits; or when credibility and accuracy are important to protect the individual. Moreover, if the fund recipient determines that the family member or friend is not competent or appropriate, the recipient should provide competent interpreter services in place of or, if appropriate, as a supplement to the LEP person s interpreter. 16 In all cases, DHHS says recipients should make the LEP person aware that he or she has the option of having the federal fund recipient provide an interpreter without charge. Written translation. With respect to written translation, DHHS says it will determine compliance on a case-by-case basis, taking into account the totality of the circumstances in light of accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin." 45 C.F.R. 80.3(b) Fed. Reg (Aug. 16, 2000) Fed. Reg. at Fed. Reg. at Fed. Reg. at Previous guidance cautioned the fund recipient that telephone interpreter lines should not be the sole language assistance option, unless other options were unavailable. See 67 Fed. Reg. at Fed. Reg. at

4 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-4 the four-factor test. 17 However, the DHHS guidance designates safe harbors that, if met, will provide strong evidence of compliance with the recipient s written translation obligations: The recipient provides written translations of vital documents (e.g. intake forms with the potential for important consequences, consent and complaint forms, eligibility and service notices) for each eligible LEP language group that constitutes 5 percent or 1000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. Translation of other documents, if needed, can be provided orally; or If there are fewer than 50 persons in a language group that reaches the five percent trigger, above, the recipient provides written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of vital written materials, free of cost. 18 According to DHHS, after the four factors have been applied, fund recipients can decide what reasonable steps, if any, they should take to ensure meaningful access. Fund recipients may choose to develop a written implementation plan as a means of documenting compliance with Title VI. 19 If so, the following five elements are suggested for designing such a plan: Identifying LEP Medi-Cal applicants and beneficiaries who need language assistance, using for example, language identification cards or I Speak cards. Describing language assistance measures such as: the types of language services available, how staff can obtain these services and respond to LEP persons, and how competency of services can be ensured. Training staff to know about LEP policies and procedures and how to work effectively with in-person and telephone interpreters. Providing notice to LEP beneficiaries about available language assistance services by, for example, posting signs in intake areas and other entry points, providing information in outreach brochures, working with community groups, using telephone voice mail menus, providing notices in local non-english media sources, and making presentations in community settings Fed. Reg. at The previous guidance called for the review to include the nature of the service, the size of the recipient, the size of the LEP language groups in the service area, the nature and length of the document, the objectives of the program, total resources available to the recipient, the frequency with which translated documents are needed, and the cost of translation. See 67 Fed. Reg. at Fed. Reg. at The guidance makes it clear that the safe harbors only apply to translation of written materials. Previous guidance established different safe harbors, calling for: (a) translation of written materials, including vital documents, for each eligible LEP language group that constitutes 10 percent or 3000, whichever is less, of the eligible population to be served; (b) for LEP language groups that do not meet the above threshold, but constitutes 5 percent or 1000, whichever is less, of the population to be served, the recipient ensures that, at a minimum, vital documents are translated, with oral translation of other documents, if needed; and (c) notwithstanding the above, a recipient with fewer than 100 persons in a language group does not translate written materials but provided written notice in the patient s primary language of the right to receive competent oral interpretation of written materials. See 67 Fed. Reg. at Fed. Reg The OCR LEP Guidance recognizes additional benefits that a written plan can provide to recipients in the areas of training, administration, planning, and budgeting. It further notes that absence of a written plan does not obviate the need to comply with Title VI, and the recipient may want to consider alternative ways to articulate how it is providing meaningful access in compliance with Title VI. Id.

5 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-5 Monitoring and updating the plan, considering changes in demographics, types of services, and other factors. 20 DHHS also notes that an effective plan will set clear goals and establish management accountability. Recipients may want to provide opportunities for community input and planning throughout the process. 21 The OCR LEP Guidance notes that systems will evolve over time, and DHHS will look favorably on intermediate steps that recipients take that are consistent with the Guidance. DHHS repeatedly states its interest in working with fund recipients to disseminate examples of model plans, best practices, and cost saving approaches. Enforcement of Title VI is primarily the responsibility of OCR, which for the most part, is complaint-driven, meaning it responds to complaints it receives. 22 Complaints are typically investigated and resolved by the OCR regional offices, which is Region IX for California. The complaint process is fairly straightforward and easy. The complaint must be filed within 180 days of the incident; however, the time limit may be waived if "good cause can be shown. It must be in writing and there is an OCR s complaint form that can be used. 23 However, it can also be done by writing a letter but it must include the following information: The client s name, address, telephone and signature (or that of client s representative) 24 Name and location where incident occurred (e.g., hospital, county welfare office, etc.) How (e.g., denied interpreter), why and when incident occurred Any other relevant information. The complaint can be mailed or faxed to: Michael Kruley, Regional Manager, Region IX, Office for Civil Rights, U.S. Department of Health and Human Services, 90 7 th Street, Suite San Francisco, CA 94103; FAX (415) ; Voice: 800/ or (415) ; TDD: 415/ Once OCR determines jurisdiction, it will notify the federal fund recipient of the complaint. After it collects data, interviews witnesses, and investigates the complaint, it will issue a letter of findings. If OCR determines that a violation occurred, it is obligated to seek voluntary compliance to resolve the problem and will usually provide technical assistance to the entity. It will enter into a Fed. Reg. at Previous guidance called on recipients to develop and implement a language assistance program that addressed: (1) assessment of language needs; (2) development of a comprehensive policy on language access; (3) training of staff; and (4) vigilant monitoring. See 67 Fed. Reg. at Fed. Reg. at For assistance in filing OCR complaints, contact NHeLP, which has experience filing OCR complaints and Title VI lawsuits. See also Randall S. Jeffrey et al., Drafting an Administrative Complaint to be Filed with the U.S. Dept of Health and Human Services Office for Civil Rights, 35 Clearinghouse Rev. 276 (Sept.-Oct. 2001). See also Julia Puebla Fortier, Interpreting for Health in the United States: Government Partnership with Communities, Interpreters and Providers, at , in The Critical Link: Interpreters in the Community (1997) (available from Benjamin s Translation Library); Raphael Metzger, Hispanics, Heath Care, and Title VI of the Civil Rights Act of 1964, 3 Kan. J.L. & Pub. Pol y 31 (Winter 1993/1994). 23 The form is available at: 24 An advocate and/or an organization can file the complaint on behalf of the injured party if the LEP beneficiary wishes to be anonymous (although at some point in the investigation, he or she may have to speak to the investigator.)

6 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-6 resolution agreement, or remedial plan, with the offending entity. 25 It rarely invokes its ultimate sanction of withdrawal of all federal funding from the offending recipient. Medicaid/Medi-Cal Requirements 26 Medi-Cal is a cooperative federal-state medical assistance program and receives federal funding so the state and any Medi-Cal participating provider must comply with Title VI. 27 A number of Medicaid provisions obligate the DHCS and Medi-0Cal providers to assure that services are rendered in a language- and culturally-appropriate manner. To begin with, DHCS must effectively communicate with applicants and recipients and publish and make available bulletins that explain the rules about eligibility and appeals in simple and understandable terms; 28 Medicaid regulations also provide heightened protections for individuals who reside in longterm care facilities, which must: Inform the resident, orally and in writing, in a language that the resident understands, of his or her rights and rules and regulations governing the resident s conduct and responsibilities. 29 Fully inform residents in languages that they can understand of their total healthy status, including their medical condition. 30 Provide services with reasonable accommodation of patients needs and preferences. 31 Ensure that residents ability to use speech and language do not deteriorate unless diminution is unavoidable. 32 The Medicaid regulations also provide protections through the Preadmission Screening and Annual Resident Review (PASARR) by requiring notice of patient rights under the program and that the evaluations must be adapted to the cultural background, language, ethnic origin, and the means of communication being used by the individual evaluated. 33 In addition, the rights of Medicaid-eligible LEP children and adolescents are protected under the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) provisions of the Medi-Cal program. DHCS must inform eligible individuals about EPSDT, 34 using methods of communication that recipients can clearly and easily understand. 35 It must also use accepted methods for informing person who cannot understand the English language. 36 To fully implement these requirements, DHCS should ensure the availability of bilingual providers and skilled and Fed. Reg , There are also separate contract requirements related to cultural and linguistic access for enrollees of Healthy Families, California s State Children s Health Insurance Program, but they go beyond the scope of this manual. For further information about the requirements, contact our Los Angeles NHeLP office C.F.R C.F.R (b). Individuals wishing to apply to Medi-Cal must be allowed to do so without delay." C.F.R (b)(1) C.F.R (b)(3) C.F.R (e)(1) C.F.R (a)(1)(i)-(v) C.F.R (b) U.S.C. 1396a(a)(43)(A). 35 Center for Medicare and Medicaid, State Medicaid Manual 5121.A (April 1990). 36 Center for Medicare and Medicaid, State Medicaid Manual 5121.C (April 1990).

7 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-7 qualified interpreters. For example, EPSDT requires coverage of medically necessary case management services to assist individuals to gain access to needed medical, social, education, and other services. 37 This mandate cannot be met if LEP parents and their children do not have access to case manages who can communicate effectively with them. Finally, in its Vaccine for Children program, DHCS must identify, with respect to any population of vaccine-eligible children a substantial portion of whose parents have a limited ability to speak the English language, those program-registered providers who are able to communicate with the population involved with the language and cultural context that is most appropriate. 38 Medi-Cal Managed Care Requirements As noted in Chapter 20: Medi-Cal Managed Care, the majority of Medi-Cal beneficiaries receive their services through managed care plans. For those who receive their health care through managed care plans, there are added requirements to ensure access to language assistance services. The Medicaid statute requires DHCS to provide all enrollment notices and information and instructional materials in a manner and form which may be easily understood by enrollees and potential enrollees. 39 Medicaid regulations require that DHCS must: Establish a methodology for determining the prevalent non-english languages spoken by enrollees and potential enrollees in the state. 40 Make written information available in each prevalent language. Require each health plan to make its written information available in the prevalent non- English languages in its service area. Make oral interpretation services available, and require each health plan to make those services available free of charge for all, not just prevalent, non-english languages. Notify enrollees and potential enrollees and require each health plan to notify its enrollees that oral interpretation is available in any language and written information is available in prevalent languages and how to access those services. 41 Inform enrollees of the names, locations and telephone numbers of, and non-english languages spoken by, current providers, including identification of providers not accepting new patients. 42 Assure that managed care organizations and prepaid inpatient health plans provide notices when services are being denied, reduced, suspended or terminated, which are in writing and meet the language requirement above. 43 Avoid fraudulent or misleading marketing by health plans, with marketing materials to be reviewed by the state for accuracy, cultural and linguistic concerns, reading level, and understandability U.S.C. 1396d(a)(19) U.S.C. 1396s(c)(3)(B) U.S.C. 1396u Prevalent is defined as a non-english language spoken by a significant number or percentage of potential enrollees in the state. 42 C.F.R (c)(3) C.F.R & (d) C.F.R (f)(6) C.F.R C.F.R

8 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-8 The Medicaid statute and regulations also set minimum elements for state quality assurance strategies. 45 These strategies must include procedures to identify the race, ethnicity, and primary language spoken by each enrollee. States must provide this information to the managed care plans at the time of enrollment. 46 Finally, the state must ensure that each managed care plan participates in the state s efforts to promote the delivery of services in a culturally competent manner to all enrollees, including those with limited-english proficiency and diverse cultural and ethnic backgrounds. 47 In addition to the general requirements under Title VI and the Medicaid statute and regulations, there are specific requirements in the DHCS Medi-Cal managed care contracts with its participating providers, including compliance with Title VI. 48 The contract explicitly requires Medi- Cal managed care plans to: Ensure equal access to health care services for LEP Medi-Cal members through the provision of high quality interpreter and linguistic services. Provide no cost, twenty-four hour access to interpreter services for all monolingual, non- English-speaking, or LEP Medi-Cal beneficiaries at all key points of contact either through interpreters or telephone language services. Provide that any LEP beneficiary must be provided with oral interpreters or bilingual providers or provider staff and clarified that the numeric threshold or concentration standards as defined in the contracts apply only to written translations. Provide referrals to culturally and linguistically (C&L) appropriate community service programs. Monitor, evaluate, and take effective action to address any needed improvement in the delivery of C&L appropriate services and implement a written description of its Cultural and Linguistic Services Program. Conduct a group needs assessment of its members every three years, and review and update their cultural and linguistic services. Assess, identify and report the language capability of interpreters or bilingual employees and contracted staff (clinical and non-clinical). Implement and maintain standards and performance requirements for the delivery of C&L appropriate health care services. Provide cultural competency, sensitivity or diversity training for staff, providers and subcontractors, and include the language and literacy needs of the members and information about the identified cultural groups in the service area. Form a Community Advisory Committee (CAC) that will implement and maintain partnerships with consumers, community advocates, and Traditional and Safety Net providers and seek input on policy decisions U.S.C. 1396u-2; 42 C.F.R C.F.R (b)(2) C.F.R (c)(2). 48 MMCD, Boilerplate Agreement Between DHS and Contractor, Exhibit A, Attachment 9, Access & Availability, at 11 (June 2003). For more information about Title VI, see also NHELP ELA Manual, Section 4, and OCR LEP Guidance. 49 Medi-Cal Contract at 11-14; see also Department of Health Services, Medi-Cal Managed Care Division (MMCD), Policy Letters to & All Plan Letter (Apr. 3, 1999). MMCD Policy Letters and All

9 Chapter 15: Linguistically Appropriate and Culturally Competent Services 15-9 DHCS uses two different standards to determine which languages written materials need to be translated into. 50 The numeric threshold mentioned in the bullet point above may be met if 3000 mandatory Medi-Cal eligibles whose primary language is not English reside in the managed care plan s service area. The concentration standard is met if the managed care plan s service area has 1000 LEP Medi-Cal managed care beneficiaries living in a single zip code or 1500 in two contiguous zip codes. Under this definition, there are currently 13 threshold languages statewide for all Medi-Cal managed care plans that require translated materials. 51 In May 1996, DHS convened a Cultural and Linguistic Competency Task Force to develop further requirements and standards for the provision of culturally and linguistically appropriate health care services in its Medi-Cal managed care program. 52 After three years, on April 2, 1999, the Medi-Cal Managed Care Division (MMCD) released Policy Letters to and All Plan Letter clarifying requirements of Medi-Cal Managed Care Plans. 53 These five policy letters issued by the Medi-Cal Managed Care Division contain detailed guidelines to assist plans in building systems that meet the needs of the diverse Medi-Cal population. As MMCD All Plan Letter noted, the managed care plans are encouraged to demonstrate continual progress towards the attainment of a high level of organizational cultural competency that is conducive to improving health care access and service delivery to its members. 54 The Medi-Cal contract requirements and policy letters can be used by advocates to support the provision of language assistance services, including interpretation and translation services, as well as notice of the availability of these services, that LEP beneficiaries should be receiving and to ensure the they have access to the health care for which they are entitled. 55 Plan Letters are found on the Web at: Key points of contact include medical care settings such as telephone, advice and urgent care transactions, and outpatient encounters with health care providers and pharmacists, and non-medical care settings such as appointment scheduling Id. at 13(D). 50 Medi-Cal Contract 13(C). 51 MMCD, All Plan Letter 02003, Cultural and Linguistic Contractual Requirements: Threshold and Concentration Standard Languages Update (6/7/02). The thirteen threshold languages statewide are Arabic, Armenian, Cambodian, Cantonese, English, Farsi, Hmong, Korean, Mandarin, Russian, Spanish, Tagalog, and Vietnamese. 52 Department of Health Services, Medi-Cal Managed Care Division (MMCD), Release of the Cultural and Linguistic Letters (Apr. 3, 1999). The Task Force solicited public comments on its draft policy recommendations in July 1997 and finalized its recommendations in January From these recommendations, MMCD prepared policy letters that also went through a public process where health plans, medical directors, community advocates, Task Force members, and experts had an opportunity to review and comment on the letters. 53 See 54 California Department of Health Services, Medi-Cal Managed Care Division (MMCD), Cultural Competency in Health Care -- Meeting the Needs of a Culturally and Linguistically Diverse Population, MMCD All Plan Letter at 1 (Apr. 2, 1999). 55 The requirements and recommendations in the policy letters only apply to those plans with the specific contract requirements.

10 Chapter 15: Linguistically Appropriate and Culturally Competent Services Nondiscrimination in State-Supported Programs and Activities: Cal. Gov t. Code and and implementing regulations, Cal. Code of Regulations tit. 22, There are separate state language access requirements that advocates for Medi-Cal beneficiaries can utilize to argue for increased cultural and linguistic access to the Medi-Cal program. One example is California Government Code 11135, which applies to any entity, including DHCS and county welfare and Medicaid office, that are operated or funded directly by the state or any participating Medi-Cal providers that receive Medi-Cal funding from the state. The statute prohibits discrimination based on many protected categories: race, national origin, ethnic group, religion, age, sex, color, or disability. Section not only applies to the state s political subdivisions, contractors and other state-funded recipients, but also to the state itself and its agencies, including DHCS. 56 A violation of this law gives rise to a private right of action for disparate treatment claims raised by a plaintiff. 57 The Government Code section was amended in 2002 to specifically include discrimination based on national origin, which includes language-based discrimination. 58 It also prohibits discrimination based on ethnic group identification, and the regulations that implement this statute define the term to mean the possession of the racial, cultural or linguistic characteristics common to a racial, cultural, or ethnic group or the country or ethnic group from which the person or his or her forebears originated. 59 Language-based discrimination is also addressed in the regulations implementing the statute in the following ways: 1) there is an extensive list of general discriminatory practices with specific types of discrimination based on ethnic group identification; 2) one states that it is a discriminatory practice for a recipient to fail to take appropriate steps to ensure that alternative communication services are available to ultimate beneficiaries; and 3) this refers to the method used or available for communicating with an LEP person, including the provision of a multilingual employee or an interpreter, or written translated materials in a language other than English. 60 There are several options for enforcement of this statute. In addition to the private right of action contained in the statute, the regulations establish an administrative enforcement mechanism in which the state agency providing the funding, upon reasonable cause, can investigate any alleged violations, conduct a hearing, and take action to curtail state funding. 61 Although the regulations authorize any state agency to create an administrative enforcement procedure, 62 DHCS has not created an administrative complaint process. However, advocates have used this statute as a basis for filing lawsuits pursuant to a writ procedure AB 677, People With Disabilities: Equal Access to State Programs and Services: Hearing Before the Assembly Committee on Judiciary (Apr. 3, 2001). 57 Cal. Gov t. Code (2005)(amended in 1999). The statute was amended in 1999 to include a private right of action and a disparate impact claim. 58 AB 3035 added national origin to be consistent with existing state and federal non-discrimination statutes. See Discrimination: Govt. Meetings and Programs: Hearing Before Assembly Committee on Judiciary (Apr ). 59 Cal. Code Regs. tit. 22, 98210(b)(2005). 60 Cal. Code Regs. tit. 22, 98101, 98210, & Cal. Gov t. Code & (2005). 62 Cal. Gov t. Code Contact the Los Angeles NHeLP office for assistance on filing a lawsuit suing this statute.

11 Chapter 15: Linguistically Appropriate and Culturally Competent Services Dymally-Alatorre Bilingual Services Act: Cal. Gov t. Code The state and local agencies are also subject to another language access requirement: California Government Code 7290, known as the Dymally-Alatorre Bilingual Services Act (Dymally), which was passed in It requires that state and local agencies provide bilingual services to non-english-speaking persons. Dymally recognizes that substantial numbers of persons who live, work and pay taxes in this state are unable, either because they do not speak English at all, or because their primary language is other than English, to effectively communicate with their government... and... because of these language barriers... are being denied rights and benefits to which they [are] entitled. 64 Dymally specifically requires every state and local agency which is directly involved in providing services to a substantial number of non-english-speaking people to employ a sufficient number of qualified bilingual persons in public contact positions. The purpose of this provision is to ensure that information and services are provided in the language of the non-english-speaking individuals. 65 For a state agency, a substantial number is defined as five percent or more of the population served by the state while local agencies may determine what constitutes a substantial number of non-english-speaking people. 66 In addition to state and local agencies, many public hospitals, which are administered by, or may be considered an agent of, local agencies, such as county Departments of Health, may be subject to the statute s requirements. Dymally also mandates the translation of any materials that explain state and local services and any notices about translated materials into any language that triggers the five per cent threshold and distribution of those materials. 67 The State Personnel Board (SPB) is responsible for informing other state agencies of their responsibilities, providing technical assistance, and monitoring compliance by conducting surveys of the agencies every two years. 68 Although the statute has rarely been utilized as a method to enforce the provision of bilingual services to LEP individuals seeking state government services, 69 it can be a useful tool for advocacy. For example, the statute was cited in an administrative fair hearing brought by the Fresno Health Consumer Center on behalf of an LEP client seeking mental health services from the county. 70 In the Matter of Antonia Salmeron involved a Spanish-speaking client who was not provided with a Spanish-speaking therapist, a Spanish-speaking support group or linguistically competent case management services. The DHCS Administrative Law Judge (ALJ) found that the Spanish-speaking 64 Cal. Gov t. Code A" sufficient number" of qualified bilingual persons is defined as the number required to provide the same level of services for non-english-speaking persons as is available for English-speaking individuals. Cal. Gov t. Code Cal. Gov t. Code , Cal. Gov t. Code , Cal. Gov t. Code In its survey, SPB found that few state agencies and departments had overall policies and language access plans that enable them to regularly evaluate ongoing language needs of their clients and employ resources necessary to respond to the need. Cal. State Personnel Board, Language Access in State Departments at 2 (Apr. 2001) available at: 69 One of the limitations of the statute is that the act shall be implemented only to the extent that local, state, or federal funds are available. See Cal. Gov t. Code 7299 (2002); See e.g., In re the Matter Antonia Salmeron, Hearing # (Dec. 5, 2000)(unpublished)(on file with the NHeLP office in Los Angeles, CA). 70 See In re the Matter Antonia Salmeron, Hearing # (Dec. 5, 2000)(unpublished)(on file with the NHeLP office in Los Angeles, CA).

12 Chapter 15: Linguistically Appropriate and Culturally Competent Services population met the substantial number (five percent) threshold as set forth in the regulations. 71 Thus, the ALJ found that the Dymally Act, as well as the state mental health regulations, required the Fresno County to provide specialty mental health services to a monolingual Spanish-speaking client in her own language or through an interpreter Local Ordinances Adopted Pursuant to Dymally Under Dymally, local agencies may determine what constitutes a substantial number of non-english-speaking people 72 and they also have the discretion to determine when materials are necessary to be translated. 73 In response, two local jurisdictions, San Francisco and Oakland, have passed local ordinances to ensure equal access to government services for LEP persons, as well as to implement and strengthen Dymally. These ordinances locally define the "substantial number"which facilitates the law s enforcement. The City and County of San Francisco passed its Equal Access to Services ordinance on June 4, Its provisions are similar to Dymally, and the ordinance requires city departments to use a sufficient number of bilingual employees in public contact positions to provide information and services in languages spoken by a substantial number of LEP persons. 74 The ordinance defines a substantial number of LEP persons as 10,000 city residents or five percent of those who use the department s services. 75 Currently, Spanish and Chinese are covered by the ordinance. Modeling its law on the San Francisco proposal, the City of Oakland passed an Equal Access to Services ordinance, which requires city departments to offer bilingual services and translated materials if a substantial number of LEP individuals utilize city services. It uses a numerical threshold of 10,000 LEP residents to meet that definition. 76 Similar to San Francisco, only Spanish and Chinese are currently covered by the ordinance. 77 Advocates in those two jurisdictions may have additional support to require interpreters and translated materials be provided by the county welfare and Medicaid offices to Medi-Cal beneficiaries. Kopp Act: Cal. Health & Safety Code 1259 The Kopp Act was passed in 1983 and provides that where communication barriers exist, interpreters or bilingual staff must be provided to ensure adequate and speedy communication between patients and hospital staff. 78 To assure access to health care information and services for LEP patients, the statute applies to all acute care hospitals, which must: 1) provide, to the extent possible, language assistance services twenty-four hours a day for language groups that comprise five 71 In re the Matter Antonia Salmeron at Cal. Gov t Code Cal. Gov t Code San Francisco, CA., Admin. Code 89.1 & 89.3(a)(2001). 75 San Francisco, CA., Admin. Code 89.2(j). 76 Oakland, CA., Municipal Code, (d) & (2001). 77 Some local jurisdictions have not based local ordinances on Dymally but have created alternative language access requirements. For example, Monterey Park has a Volunteer Translator and Interpreter Program to assist with translation of documents and correspondence in Spanish, Chinese, and Japanese and/or Vietnamese. City of Monterey Park, Multilingual City Services Policy No Cal. Health & Safety Code 1259(a).

13 Chapter 15: Linguistically Appropriate and Culturally Competent Services percent or more of the facility s geographic service area or actual patient population; 2) develop policies on the provision of interpreter services to LEP patients and review these policies annually; 3) post multilingual notices that advise patients and their families of the availability of interpreters, how to obtain an interpreter, and how to make complaints to state authorities; 4) notify their employees of their commitment to provide interpreters to all patients who request them; 5) prepare and maintain a list of qualified interpreters; 6) identify and record their patients' primary languages in hospital records; 79 7) consider providing non-bilingual staff with picture and phrase sheets to facilitate communication with LEP patients; and 8) consider establishing community liaison groups to enable LEP communities to ensure the adequacy of interpreter services 80 As the state licensing agency for hospitals, the California Department of Health Care Services (DHCS) is authorized to enforce these requirements through administrative sanctions. 81 Advocates can file an administrative complaint with the DHCS Office of Civil Rights for alleged violations. Knox-Keene Act Protections: Cal. Health & Safety Code 1367, & All managed care or health care service plans operating in California, both public, including those in the Medi-Cal program, and private, such as those in the commercial market, must provide C&L appropriate health care services to their LEP members through Language Assistance Plans. 83 The requirements in these sections apply not only to commercial health plans, but they also cover Medi-Cal managed care plans to the extent that they must meet the general requirements of the Knox-Keene Act as well as the Medi-Cal managed care contract requirements explained above. The Department of Managed Health Care (DMHC) issued final regulations that went into effect on February 23, These regulations establish standards and requirements to provide health care service plan enrollees with access to language assistance in obtaining health care services. 85 The purpose of the laws is to ensure that LEP persons have quality and accessible health care and that communication and/or language barriers which compromise health care are eliminated. Plans must: Assess the linguistic needs of the enrollee population. Provide oral interpretation for enrollees in commercial health plans. 79 See also Cal. Health & Safety Code (requires all health care facilities and all primary care clinics to include the patient s principal spoken language on his/her health records)(2005). 80 Cal. Health & Safety Code 1259(c)(1)-(9). Interpreter is defined not only as a person fluent in English and in the necessary second language, who can accurately speak, read, and readily interpret the necessary second language, but also one who has the ability to translate the names of body parts and to describe competently symptoms and injuries in both languages. Cal. Health & Safety Code 1259(b)(1). 81 Cal. Health & Safety Code (d). Complaints can be filed at the Office of Civil Rights, Department of Health Care Services at (916) The bill, SB 853, which was passed in 2003, also imposed similar requirements for all health insurers conducting business in the state to establish language assistance plans for their insureds. Cal. Ins. Code & Cal. Health & Safety Code (a). No managed care plan may refuse to enter into any contract, cancel, or decline to renew or reinstate any contract because of the race, color, ancestry, national origin, or a range of other characteristics of any subscriber, enrollee, member or any other contracting party. Cal. Health & Safety Code The Department of Insurance s final regulations went into effect on October 19, See Cal. Ins. Code (a); Cal. Code Regs. tit. 10, See Cal. Code Regs. tit. 28, &

14 Chapter 15: Linguistically Appropriate and Culturally Competent Services Develop standards to ensure the quality and accuracy of the written translations. Develop standards to ensure the quality and timeliness of oral interpretation services. Update the needs assessment, demographic profile, and language translation requirements every three years. 86 The laws also establish unique thresholds that trigger the translation of written materials and list the materials that must be translated. 87 DMHC will monitor and enforce compliance, must seek public input from a wide range of interested parties, and report to the Legislature biennially. This requirement may motivate commercial health plans to work with advocates, public hospitals, Medi-Cal managed plans, and consumers to support efforts to seek funding for linguistic services to their members and consider pooling resources to provide such services. If state and federal funding becomes available to pay for language services for Medi-Cal beneficiaries, access to culturally and linguistically appropriate services will be greatly increased. 88 For example, interpreter or translation pools could be created and many entities could draw on its offered services. By taking advantage of such economies of scale, overall costs for such services will be greatly reduced. Advocacy Tip The key to determining what rights LEP Medi-Cal applicants and beneficiaries have is to find out which entity is causing the problem and where they get their funding: If the entity is a federal fund recipient, including those participating in the Medi-Cal program, see the section under Title VI (42 U.S.C. 2000d). If the entity is a state fund recipient, including those participating in the Medi-Cal program, see the section under Govt. Code et seq. If the entity is DHCS or local Medi-Cal agency, see the section under the Dymally- Alatorre Bilingual Services Act (Govt. Code 7290 et. seq.). If the entity is a licensed acute care hospital, including those participating in the Medi- Cal program, see the section under the Kopp Act (Health & Safety Code 1259). If the entity is a Medi-Cal managed care plan, see the sections under the Medicaid/Medi-Cal requirements and the Medi-Cal Managed Care Contract Provisions and Policy Letters. If the entity is a managed care plan licensed by DMHC, see the section under the Cultural and Linguistic Requirements of the DMHC (Health & Safety Code 1367 et seq.). 86 Cal. Health & Safety Code Vital documents must be translated into: 1) the top two languages (other than English) and any additional language which meets 0.75 per cent or 15,000 of the enrollee population, whichever is less if the plan has an enrollment of 1,000,000 or more; 2) the top language and any additional language which meets one per cent or 6,000 if the plan has between 300,000-1,000,000 enrollees; and 3) those languages which meet the trigger of 3,000 or five per cent of the enrollee population, if the plan has less than 300,000. Cal. Health & Safety Code (b)(1)(A) & Cal. Ins. Code (b)(3)(A). 88 There is currently an effort underway to set up a state mechanism to obtain federal matching funds to pay for language services provided to Medi-Cal fee-for-service beneficiaries through the DHCS Medi-Cal Language Access Services Task Force. See or contact the Los Angeles NHeLP office for more information.

15 Chapter 15: Linguistically Appropriate and Culturally Competent Services Advocacy Tip Here are some action steps to help your client: Give your clients I Speak Cards 1 so they can show their providers what language they speak. Contact the Medi-Cal entity/facility/provider and advocate for language assistance. Send a demand letter to the entity/facility. File a grievance/complaint with the entity/facility. File for a Medi-Cal Fair Hearing or Appeal. 1 Find an interpreter or translator from a community-based interpreter agency who can provide interpreter or translation services for the LEP patient and/or can contract with the provider to provide interpreter or translator services. 1 File a complaint with the appropriate enforcement body, i.e. OCR for Title VI. The following state and federal agencies enforce linguistic access requirements and receive complaints for violations of the law: OCR Complaints: Medi-Cal: ww2.dhcs.ca.gov/services/medi-cal/pages/wheretogethelp.aspx Medi-Cal Managed Care Office of the Ombudsman: DMHC HMO Help Center: HMO OPA: HMO DOI Consumer Assistance: HELP (4357) Culturally Competent Services As noted in prior sections, there are requirements that address cultural competency issues. However, unlike the language access requirements pursuant to Title VI of the 1964 Civil Rights Act and other state mandates, cultural competency requirements are not as clearly defined as language assistance services. In December 2000, the Office of Minority Health of the U.S. Department of Health and Human Services published its National Standards on Culturally and Linguistically Appropriate Services (CLAS) in Health Care. 89 The CLAS standards are proposed as a means to correct inequities that currently exist in the provision of health services and to make these services more responsive to the individual needs of all patients/consumers. 90 These CLAS standards provide guidance to Medi-Cal providers about how to provide culturally and linguistically appropriate care to their patients Fed. Reg (Dec. 22, 2000), reprinted at 65 Fed. Reg. at

16 Chapter 15: Linguistically Appropriate and Culturally Competent Services Although there are various definitions of cultural competency, in its final report, OMH used the following definition: Cultural and linguistic competence is a set of congruent behaviors, attitudes, and policies that come together in a system, agency, or among professionals that enables effective work in cross-cultural situations. `Culture' refers to integrated patterns of human behavior that include the language, thoughts, communications, actions, customs, beliefs, values, and institutions of racial, ethnic, religious, or social groups. `Competence' implies having the capacity to function effectively as an individual and an organization within the context of the cultural beliefs, behaviors, and needs presented by consumers and their communities. 91 The CLAS standards are independent of DOJ and OCR LEP Guidance documents. However, because they address many of the same issues in great detail and are aimed at health care providers, these standards are proving helpful to providers as they devise and implement language access plans. 92 They are the first national standards for culturally and linguistically appropriate services (CLAS) in health care and state that all patients should receive fair and effective CLAS and treatment. The 14 standards are comprised of mandates related to language access services (and tied to Title VI requirements), and guidelines and recommendations on culturally competent care and organizational supports for cultural competence. Health care organizations, including Medi-Cal facilities: Should ensure that patients receive effective, understandable, and respectful care provided in a manner compatible with their cultural beliefs and practices and preferred language. Should implement strategies to recruit, retain and promote a diverse staff representative of the service area. Should ensure that staff receive ongoing training in the delivery of CLAS. Must offer and provide language assistance at no cost to the LEP patient at all points of contact in a timely manner during all hours of operation. Must provide verbal offers and written notice to LEP patients in their preferred language of their right to receive language assistance. Must assure the competence of interpreters - no family members or friends should be used as interpreters. Must make available easily understood patient-related materials and post signage in the most common languages of groups in the service area. Should develop, implement and promote a written strategic CLAS. Should conduct an initial and ongoing organizational CLAS assessment and integrate CLAS measures into their internal audits, performance improvement programs, patient satisfaction assessments, and outcomes-based evaluations. 91 Office of Minority Health, U.S. Dept. of Health and Human Services, National Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health Care: Final Report at 4-5 (March 2001), available at: 92 The final report provides detailed explanations for each CLAS standard. Additional materials produced by the Office of Minority Health to assist health care providers to implement the various guidelines and recommendations of the CLAS standards, such as A Patient-Centered Guide to Implementing Language Access Services in Healthcare Organizations, available at:

17 Chapter 15: Linguistically Appropriate and Culturally Competent Services Should ensure that the patient s race, ethnicity and spoken and written language recorded in his/her health records and periodically updated. Should maintain a current demographic, cultural, and epidemiological profile of the community and a needs assessment plan to plan and implement CLAS. Should develop participatory, collaborative partnerships with communities and use community and patient/consumer involvement to design and implement CLAS related activities. Should ensure that conflict and grievance procedures are culturally and linguistically sensitive and capable of identifying, preventing, and resolving cross-cultural conflicts or complaints by patients. Should be encouraged to regularly make CLAS-related information available to the public and provide public notice of such availability of information. In recognition of the importance of cultural and linguistic competency of health care providers, California requires that most continuing medical education courses incorporate the subject of cultural and linguistic competency within the practice of medicine into the course content AB 801, which was passed in 2003, created a voluntary program for physicians to learn foreign languages and cultural beliefs that impacted patient heath care practices. See Cal. Bus. & Prof. Code 853 & In 2005, AB 1195 was passed which requires all continuing medical education courses for physicians, with some exceptions. See Cal. Bus. & Prof. Code providers to learn foreign languages and cultural beliefs impacting practices; 1195 requires continuing education courses for physicians, with some exceptions, to include curriculum in the subjects of cultural and linguistic competency in the practice of medicine