27 minute read
C.E. Credit: A Historical Overview of Language Access in Dentistry
Nicole Holland, DDS, MS, is an assistant professor and the director of health communication, education and promotion in the Tufts University School of Dental Medicine’s Department of Public Health and Community Service. Her research interests include the intersection of health literacy, language access and oral health as well as the impact of oral health messaging in the media. She is co-chair of the American Dental Association’s National Advisory Committee on Health Literacy in Dentistry and serves on the National Academies of Science, Engineering and Medicine’s Roundtable on Health Literacy. Dr. Holland is a diplomate of the American Board of Orofacial Pain. Conflict of Interest Disclosure: None reported.
ABSTRACT
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Background: More than 67 million Americans (22%) speak a language other than English at home, with more than 25 million (8.4%) speaking English “less than very well.” Language, culture and literacy are intimately related. However, the significance of language is often overshadowed in the larger conversation of oral health and health literacy.
Methods: Studies have shown language-related barriers to be associated with medical errors, decreased patient satisfaction, poorer self-management and worsened clinical outcomes. Alternatively, use of professional interpreters and other quality language assistance services enhance language access, resulting in improved patient engagement and satisfaction, increased care quality and better clinical outcomes.
Conclusions: Ensuring language access for our patients is a critical component in achieving oral health equity. This article provides a brief history of language access policy in this country, discusses the impact of language access protections on the dental profession and recommends actionable steps for dental providers to facilitate equitable, quality care for their patients and communities.
Practical implications: Maintaining and prioritizing language access protections alongside other nondiscrimination practices mitigates significant barriers to care and helps to ensure all patients are able to receive the quality oral health care they need.
Keywords: Language access, limited English proficiency (LEP), health equity, health literacy, interpreter services, oral health
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When will language, a basic form of human communication and connection, no longer be a stumbling block preventing one from obtaining quality health care? Language, culture and literacy are intimately related. However, the significance of language is often overshadowed in the larger conversation of oral health and health literacy. More than 67 million Americans (22%) speak a language other than English at home, with more than 25 million (8.4%) speaking English “less than very well” (with these numbers likely to increase upon release of the 2020 Census data). [1] Because access to oral health care is already a challenge for many in the U.S., [2] language barriers can further complicate many aspects of care. English proficiency is not a requirement for receiving health care in this country, and all patients ought to have the opportunity to receive health care they can understand. However, individuals with limited English proficiency (LEP) (defined as “individuals who do not speak English as their primary language and who have a limited ability to read, speak, write or understand English” [3] ) are subject to greater communication challenges and obstacles when navigating the health care system, putting them at greater risk of suboptimal care. Many individuals with LEP may not comprehend critical information, express concerns or ask relevant questions in a clinical encounter, despite their ability to communicate in English fairly well. Others may feel uncomfortable revealing they have trouble communicating in English. Studies have shown language-related barriers to be associated with medical errors, decreased patient satisfaction, poorer self-management and worsened clinical outcomes. [4–9] Alternatively, use of professional interpreters and other quality language assistance services enhance language access (defined as “providing LEP people with reasonable access to the same services as English-speaking individuals” [10] ) and facilitate effective communication across languages. This results in improved patient engagement and satisfaction, increased care quality and better clinical outcomes, thereby reducing disparities; despite these benefits, however, language assistance services remain underutilized. [6,11–16]
Providing equitable, quality-driven and patient-centered oral health care requires dental offices to not only be aware of but also be prepared to address the cultural and linguistic needs and preferences of patients, including language. Ensuring language access for our patients is a critical component in attaining health literacy and achieving oral health equity. The goal of this article is to provide a brief history of language access policy in this country, discuss the impact of language access protections on the dental profession and recommend actionable steps for dental providers to facilitate equitable, quality care for their patients and communities.
Language Access Policy in U.S. Health Care: History in Brief (FIGURE): 1964
Title VI of the 1964 Civil Rights Act (which states “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” [17] ) initially laid the legal foundation for language access across many societal sectors in this country, including health care. [18] While a robust discussion of the history, interpretation and implementation of this act in its entirety is beyond the scope of this paper, two items of note are of significance as they relate to language access: 1) historically, the interpretation of this act has generally been that failure to provide language access has a discriminatory impact on the basis of national origin and 2) the federal origin of this act applies to institutions and programs (including dental) receiving federal funds (such as Medicaid and Medicare payments, federal grants, etc.).
2000
In 2000, Executive Order 13166 “Improving Access to Services for Persons with Limited English Proficiency” signed by President Bill Clinton legally bolstered language access-related components of the 1964 Civil Rights Act, [19] requiring federal fund recipients to reasonably provide language services (such as remote interpreter services [telephone or video], translators, bilingual staff or professional on-site interpreters) for all using their programs, activities or services. Subsequently, the Office of Civil Rights (OCR) issued policy guidance [20] (which was then revised in 2003 under the Bush administration [21] ) “to clarify the responsibilities of providers of health and social services who receive federal financial assistance … and assist them in fulfilling their responsibilities to LEP persons, pursuant to Title VI of the Civil Rights Act of 1964.” [20] Essentially, recipients are required to take “reasonable steps to ensure meaningful access” to their programs and activities for individuals with LEP. The OCR acknowledged the potential for disparate impact and burden on smaller organizational recipients (e.g., small businesses) regarding size, available resources and budget constraints when considering language assistance services provisions, writing “Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets. In addition, reasonable steps may cease to be ‘reasonable’ where the costs imposed substantially exceed the benefits.” [21] The guidance specifically identified four factors (referred to as the “four-factor analysis”) for all recipients to consider when determining the extent and types of language assistance to offer: 1) number (or proportion) of LEP individuals served or eligible to be served; 2) frequency of contact; 3) nature and importance of service provided; and 4) resources and costs. There was no question that large health care entities such as hospitals or health systems ought to provide language assistance services. However, even with the guidance, the terms “reasonable steps” and “meaningful access” were considered broad, and vague and specific application to the dental profession, where private practice is the primary business model, has never been clearly outlined.
2010
Building on the aforementioned civil rights pillars (1964 Civil Rights Act and Executive Order 13166), the Affordable Care Act of 2010 (ACA) reinforced longstanding nondiscrimination protections (including language access protections for individuals with LEP) under Section 1557, broadening its scope to include not only federal fund recipients but also health programs or activities administered by federal agencies and entities created under Title I of the ACA, which includes health insurance marketplaces. [22]
2016
While Section 1557’s protections took effect in 2010 with the enactment of the ACA, regulations issued by the Department of Health and Human Services (HHS) were not implemented until July 2016. [23] The 2016 rule prohibited discrimination in health care on the basis of race, color, national origin, sex, age or disability. Key language access-related regulations in the 2016 rule included: definitions and related requirements regarding the use of “qualified” interpreters and bilingual providers/staff; prohibiting reliance on low-quality video remote interpretation services; requiring providers to provide free and timely interpreting services (i.e., eliminating burden from patients to provide their own interpreter); and requiring covered institutions to post a notice of nondiscrimination and taglines in the 15 most prevalent languages spoken in their respective states informing individuals of their rights to free language assistance services. Additionally, practices with 15 or more employees were required to adopt a grievance procedure and designate an employee to be responsible for grievances. Of note, the regulations directly acknowledged that general language fluency does not always equate to proficiency in interpreting complex health information (e.g., “I speak Spanish” versus “I have the necessary skills to adequately and professionally interpret complex health care information in a given setting”); as such, Section 1557 specifies the need to ensure adequate interpreter skills of providers as well. Another distinguishing factor of Section 1557 is that it allows an individual or entity to file a civil rights complaint with the HHS OCR.
2020
In June 2020, anti-discrimination protections in health care, including those involving language access, were significantly eliminated and/or reduced under the revised Section 1557 final rule (2020 rule) issued by the Trump administration. According to the amended 2020 rule, revisions are intended to clarify the scope of 1557 and reduce confusion, better comply with congressional mandates and relieve financial and administrative burden. [24] Language access-specific revisions include a shift in reference from individuals with LEP to entities; elimination of taglines and notice requirements; removal of the language access plan recommendation; removal of the definition of “qualified interpreter;” and removal of video remote interpreting standards, now requiring only audio remote interpreting. Key regulations remaining in the revised 2020 rule include: Interpretation must be accurate, timely and free of charge and individuals with LEP cannot be required to bring their own interpreter or rely on a minor child or accompanying adult to interpret.
2021
To date, the majority of the 2020 rule remains in effect, including the reduction of many language access protections (as shown previously). Another political administration is currently in place, and some major Section 1557 policy reversals (unrelated to language access) have already occurred, [25] others are anticipated and pending lawsuits remain. [26] Because Section 1557 will likely evolve (including language access-related components), dentists need to remain vigilant.
Of note, the history in brief as written above consists of only federal laws and regulations. State laws do exist and provide additional specificity and protections; however, they vary by state. California has historically had and continues to have the highest number of language access-related provisions. The National Health Law Program created a comprehensive summary of language access-related state laws as of 2019. [27]
Impact of Language Access Protections on the Dental Profession
As mentioned, the impact of language access protection laws and regulations has been confusing for many, often leaving dentists across a variety of practice settings to question which regulations apply to them. In short, the laws have always applied and still remain applicable to all federal fund recipients, including dental providers. Since 2016, however, the enhanced specificity and additional requirements of the 1557 regulations have acutely heightened awareness within the dental community, further leading to confusion and much disdain.
As noted, the 1557 regulations apply to dentists and other health care providers receiving federal funds through HHS, including Medicaid, the Children’s Health Insurance Program and providers reimbursed by Medicare Part C (Medicare Advantage, independent of whether the plan reimburses the provider or patient). Under the 2016 rule, covered entities (e.g., dental offices, dental schools, community health centers and other entities that receive federal financial assistance) were required to “provide meaningful access to individuals with limited English proficiency” by posting two types of notices (i.e., notice of nondiscrimination and taglines in the top 15 non-English languages spoken in the state indicating that free language assistance services are available) in the dental office, on the website and in any “significant” publications and communications and adopting a grievance procedure and designating an employee to be responsible for grievances (applicable to practices with 15 or more employees). These new requirements were found to be burdensome for multiple reasons, as follows: Use of vague terminology (e.g., wording such as “significant” publications and communications as well as “reasonable steps” to provide “meaningful access”) left implementation open to interpretation (i.e., which publications are significant? What steps are considered reasonable? What is meaningful access?); enhanced rules regarding interpreter and translation services (i.e., definitions regarding who is “qualified,” among others) were considered by some to be “overly prescriptive” for small-business practice settings; and requiring provision of language assistance services free of charge while not simultaneously considering reimbursement strategies for providers placed additional financial burden on small-business practice owners.
Burden on Dentists: Response From the Dental Profession
The ADA, the largest dental association in the nation representing over 160,000 member dentists, [28] has conspicuously stated that while it “strongly supports nondiscrimination in health care and equal access to health care for all patients,” it did not support the 2016 rule, deeming it to be “confusing, duplicative and burdensome as well as unnecessary.” [29] Similarly, in an effort to delay the rule’s enforcement date, the Organized Dentistry Coalition also reflected disapproval in a 2016 letter to the OCR. [30] Opposite the original intent to expand language access as a means of enhancing the health of the nation, the 2016 regulations, according to the ADA, actually adversely affected oral health access due to the increased costs and resulting financial burden placed on dentists, ultimately making it more difficult for dentists to deliver quality, affordable care. Given that small-business practice owners comprise the majority of dentists, the ADA also strongly advocated for the inclusion of a small-business exception (25 employees or fewer), which was denied. [31] Despite its staunch opposition to the Section 1557 regulations, the ADA worked to support its members by developing dental-specific resources on 1557 as well as endorsing CyraCom as an interpreter services provider, offering a member discount when utilizing their services. Following a change in political administration, HHS proposed to revise the 2016 rule [32] and then-ADA President Jeffrey M. Cole and Executive Director Kathleen T. O’Loughlin conveyed strong support, writing the following in a 2019 letter to the OCR: “The time and cost associated with interpreting these regulations, printing these documents or altering existing publications and modifying websites to comply with these requirements has been significant for dental offices. We conservatively estimate the dental profession has spent $240,450,000 on compliance to date.” [33]
Since the finalization of the amended 2020 rule, notices and taglines in all significant communications are no longer routinely required of covered dental practices (only “when necessary”), and use of acceptable, audio-based interpretation services has also been expanded. (See the TABLE for comparison of key changes.) When use of interpreters is needed, interpretation must still be accurate, timely and free of charge, and individuals with LEP cannot be required to bring their own interpreter or rely on a minor child or accompanying adult to interpret.
The 2020 rule is supported by the ADA and the Organized Dentistry Coalition in hopes that it will largely reduce costs and overall burden on many dental practices. [33,34] But where does this leave language access protections for dental patients with LEP?
As noted previously, Section 1557 regulations will likely continue to evolve. However, matters of health equity, such as language access, supersede the ebb and flow of political administrations of the time. Ultimately, language should not be a barrier to oral health care. It is worth noting that, as outlined above, the legal foundation for language access protection was established in 1964 with Title VI of the Civil Rights Act and has applied to the dental profession since its inception. In a 2016 correspondence with then-ADA President Carol Gomez Summerhays and Executive Director Kathleen T. O’Loughlin, OCR Director Jocelyn Samuels wrote “…many of the obligations imposed by the regulations have for many years applied to dental practices of all sizes, as well as other covered entities, under other federal civil rights laws. For example, the obligation to take reasonable steps to provide meaningful access to individuals with limited English proficiency has applied, under Title VI of the Civil Rights Act of 1964, to all dental practices that receive Federal financial assistance.” They also pointed out similar obligations, such as providing “auxiliary aids and services and reasonable modifications of policies, practices, and procedures, to individuals with disabilities … under Section 504 of the Rehabilitation Act of 1973 and to dental practices that own, lease or operate a place of public accommodation under the Americans with Disabilities Act.” [31] While certain laws and regulations will continue to evolve, the spirit of Section 1557 lies in the statutes that come before it, with the ultimate goal of establishing protection from discrimination for individuals with LEP.
Language directly impacts patient care. The question is not whether language access should exist, but rather how can we as a profession balance the needs and responsibilities of running a dental practice with the cultural and linguistic needs of our patients and communities. How can dentists ensure language is not a barrier to quality oral health care, and what can dentists do to support language access protections for individuals with LEP?
Recommendations for Dental Practice Know the Community You Serve
Research demographic information of your local community beyond patients of record in your practice. (Resources may include U.S. Census, public health departments [state and local], department of education [state-level], local hospitalization utilization data and/or municipal boards of health). Understand your dental practice in the context of the larger community.
Assess the Language Assistance Needs of Your Patient Population
Determine whether your current language assistance options meet the needs of patients speaking languages other than English. Some patients may not feel comfortable revealing they have trouble communicating in English. Identify any unmet needs by systematically asking and verifying the preferred language in which your patients would like to receive their oral health care. Consider including preferred language as a question on your intake form and/or creating fields in your electronic health record to capture language preference and interpreter use. [35]
Research Language Assistance Options and Identify Which Are Most Reasonable To Offer in Your Practice
While notices and taglines may no longer be required of covered practices as of the revised 2020 rule, language assistance may very well still be needed. (Interpretation must still be accurate, timely and free of charge, and individuals with LEP cannot be required to bring their own interpreter or rely on a minor child or accompanying adult to interpret.) Initial efforts might include hiring staff who reflect the linguistic and cultural diversity of your community and contracting with an interpreter services company to provide remote (telephone or video) interpreter services as needed. (Consider taking advantage of the discounted interpreter services fee agreement for ADA member dentists. [36] ) Verify language proficiency of all practice staff (including providers) who communicate with patients in non-English languages and support and encourage health care interpreter training, when applicable.
Establish Practice Policies for Working With LEP Individuals
Develop written policies [37] regarding how patient language needs are assessed and documented, when and how interpreters should be used, how proficiency of multilingual staff is verified and where and how language assistance is documented.
Train All Dental Team Members
Offering culturally and linguistically appropriate services transcends the efforts of one person. [38] Train all members of your dental team on team communication, cultural competency, respectful assessment and documentation of preferred language and interpreter needs and effectively working with interpreters (in person and remote). Explain why use of friends or family members for interpretation is not recommended and use of minors is prohibited.
Advocate for Adequate Reimbursement for Dentists
Language assistance services are required to be of no cost to the patient, which leaves the financial burden to the entity/provider as an operating expense. Practical implementation in the dental profession is challenging, particularly for those in small business/private practice models. If a new patient visit involving comprehensive oral evaluation and fullmouth radiographs generates $200-$300 in production for an average dental practice, how much can that practice routinely justify paying for interpreter services for that visit? Because balancing necessary nondiscrimination practices with fiscally responsible health care services can be difficult, advocating for adequate reimbursement from insurance companies as well as state and federal agencies is essential. Datadriven evidence regarding the financial implications of providing language assistance services, the need for adequate reimbursement for dental visits requiring such services and possible alternative payment models is needed.
Conclusion
Health information is complex and difficult to understand and navigating the U.S. health care system is challenging — independent of the language one may speak. Language is integral to health literacy, communication, patient care and, ultimately, health equity. Further research is needed on the state of language access in the dental profession as well as its impact on patients, providers and the larger oral health and health care system. Maintaining and prioritizing language access protections alongside other nondiscrimination practices mitigates significant barriers to care and helps to ensure all patients are able to receive the oral health care they need.
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C.E. CREDIT QUESTIONS
December 2021 Continuing Education Worksheet
This worksheet provides readers an opportunity to review C.E. questions for the article “A Historical Overview of Language Access in Dentistry: The Impact of Language Access Protections on Oral Health Care” before taking the C.E. test online. You must first be registered at cdapresents360.com. To take the test online, please click here. This activity counts as .5 of Core C.E.
1. According to the 2019 U.S. Census Bureau American Community Survey, approximately what percentage of Americans speak a language other than English at home?
a. 18%
b. 22%
c. 30%
d. 37%
2. Studies have shown language-related barriers to be associated with all but which of the following?
a. Poorer self-management
b. Decreased health care provider satisfaction
c. Medical errors
d. Worsened clinical outcomes
3. Which of the following statements apply to this clause of the 1964 Civil Rights Act, “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”? (mark all that apply)
a. It laid the legal foundation for language access across many societal sectors in the U.S., including health care.
b. Failure to provide language access has a discriminatory impact.
c. It applies to all institutions and programs receiving federal funds, such as Medicaid, CHIP and Medicare payments and federal grants.
d. It has been clarified and strengthened over the years by executive order and policy guidance.
4. Guidance on the language access-related components of the 1964 Civil Rights Act, first issued by the Office of Civil Rights (OCR) in 2000 under President Clinton and later clarified in 2003 under President Bush, acknowledged the difference in resources between large and small health care entities and identified four factors for consideration when determining the extent and types of language assistance to offer. These include all but which of the following?
a. Number (or proportion) of LEP individuals served or eligible to be served
b. Nature and importance of service provided
c. Extent of each person’s inability to understand English
d. Resources and costs
5. In 2010, Section 1557 of the Affordable Care Act (ACA) brought changes to requirements for health care providers who receive federal funds, including dentists, but they were not implemented until 2016 with the release of “The 2016 Rule.” This rule included which of the following?
a. Definitions and related requirements regarding the use of “qualified” interpreters and bilingual providers/staff.
b. Prohibition of low-quality video remote interpretation services.
c. Requirements that providers offer free and timely interpreting services.
d. Taglines in the 15 most prevalent languages spoken in their respective states informing individuals of their rights to free language assistance services.
e. All of the above.
6. Significant changes to language assistance requirements came again in June 2020, with the Trump administration’s release of an amended “Section 1557 Final Rule.” Which of the following are included in the 2020 rule? (mark all that apply)
a. Requires notices and taglines in communications of covered dental practices only “when necessary.”
b. Expands the use of acceptable, audio-based interpretation services.
c. Requires that interpretation must still be accurate, timely and free of charge.
d. Permits individuals with LEP to bring their own interpreter or rely on a minor child or accompanying adult to interpret.
e. All of the above.
7. To ensure uniformity, the amended 2020 Final Rule prohibits states from enacting their own laws or regulations regarding language access.
a. True
b. False
8. The author makes several recommendations for dental practices to ensure language is not a barrier to quality oral health care and to support language access protections for individuals with LEP. Which of the following does she recommend dental practices consider for meeting language-assistance needs in their practice? (mark all that apply)
a. Establish practice policies for working with individuals with LEP.
b. Train all members of the dental team on communication, cultural competency, respectful assessment and documentation of preferred language and interpreter needs.
c. Hire staff who reflect the linguistic and cultural diversity of the community.
d. Contract with an interpreter services company to provide remote (telephone or video) interpreter services as needed.
e. All of the above.
9. The ADA offers a discounted interpreter services fee agreement for ADA member dentists.
a. True
b. False
10. Though the language-access provisions of Section 1557 of the ACA, which reinforced longstanding nondiscrimination protections, were amended as recently as 2020, dentists should pay close attention to this as further revisions are anticipated.
a. True
b. False
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24. 85 FR 37160. Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority.
25. 86 FR 27984. Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972.
26. Musumeci M, Dawson L, Sobel L, et al. Recent and Anticipated Actions to Reverse Trump Administration Section 1557 Non-Discrimination Rules. KFF; June 9, 2021. Accessed June 28, 2021.
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THE AUTHOR, Nicole Holland, DDS, MS, can be reached at Nicole.Holland@tufts.edu.
