4/12/2017. A Human Rights Essue

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1 A Human Rights Essue Steve Hamerdinger, Director Office of Deaf Services Alabama Department of Mental Health Now imagine you were deaf and in that young mother s shoes. Not providing adequate language access is a major issue 7 Deaf people filed a class action lawsuit against Baptist Health System in Jacksonville, Florida. 2 deaf men (partners) sued Rose Medical Center in Denver, Colorado. A Chattanooga deaf couple files suit against Erlanger Hospital. 1

2 It s not just hospitals New Jersey Jury Decides in Favor of Deaf Patient Denied Interpreter in Doctor s Office $400,000 Awarded In Landmark Decision. Dr. Arshad Pervez, which includes all of his employees, staff members, and any other individuals affiliated with his professional medical office settles suit for failure to provide interpreters. Settled suit: Dr. Mukkamala will provide to individuals who are deaf or hard of hearing, free of charge, appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication Fairfax Nursing Center settles suit brought by deaf resident and family. Suit against Dr. Peter Chang-Sing, M.D., F.A.C.C. for failure to provide interpreter when requested. Deaf people are denied communication access daily. At the August Board meeting of Alabama Association of the Deaf, 100% of the board members (12 present) were able to recount a recent time when they or someone they knew were denied interpreter access at a healthcare facility in Alabama. At least half were specifically hospitals and were first hand experience. Most could recount multiple experiences. In June, 2014, a 30-year deaf woman, Kate*, with a known history of severe mental illness was brought to the emergency room by her group home staff following a violent outburst. No attempt was made by the ER staff to locate a qualified interpreter. The psychiatric resident on duty assessed and released her without having communication access. Less then 24 hours later she was incarcerated in Shelby County jail. How is this wrong? Let me count the ways Among the more obvious violations: Joint Commission Standards. ADA Title III (and maybe Title II). DHHS CLAS standards. Title VI of Civil Rights Act. * Not her real name, of course 2

3 Procedural safeguards are not working. A prominent deaf professional was scheduled to have a heart procedure at one the largest healthcare facilities in the state last January. The procedure was to be scheduled around interpreter availability and request was put in by the surgeon several weeks prior to the surgery date. On the day of the surgery, no interpreter was available. An ad hoc arrangement was finally put in place more than 5 hours after the scheduled start of the procedure. Alfred Weinrib died of cancer but never knew his diagnosis after 3 Long Island hospitals allegedly did not have sign language interpreters on staff. Three Long Island medical facilities failed to get him sign-language interpreters for seven months. Alfred Weinrib, 82, even attempted suicide after nurses at one geriatric rehab facility ignored his desperate pleas for help getting to the bathroom because they couldn t understand him, his children claim in a Brooklyn federal court lawsuit. Failure establish effective communication opens the provider to significant risk. Consider the case of Willie Ramirez: In 1980, 18-year-old Willie Ramirez was admitted to a Florida hospital in a comatose state. His friends and family tried to describe his condition to the paramedics and doctors who treated him, but they only spoke Spanish. Translation was provided by a bilingual staff member who translated "intoxicado" as "intoxicated." A professional interpreter would have known that "intoxicado" is closer to "poisoned" and doesn't carry the same connotations of drug or alcohol use that "intoxicated" does. Ramirez's family believed he was suffering from food poisoning. He was actually suffering from an intracerebral hemorrhage, but the doctors proceeded as if he were suffering from an intentional drug overdose, which can lead to some of the symptoms he displayed. Because of the delay in treatment, Ramirez was left quadriplegic. He received a malpractice settlement of $71 million. 3

4 A Spanish-speaking male patient entered the emergency department at Anne Arundel Medical Center in Annapolis, Md., in December 2012 suffering from vomiting, abdominal pain and shortness of breath. Over two days in the hospital, he had blood drawn, underwent an abdominal CT scan, received IV fluids and had a urinary catheter inserted. But it's possible that he never fully understood that fluid was building up in his abdomen and lungs and that his condition could be fatal. According to a hospital inspection report, no one discussed his care plan with him in Spanish, the only language he understood, until an hour and a half before he died. Use of unqualified interpreters is endemic in Alabama hospitals and nationwide Most organizations advise against the use of a patient's family or friends, who can potentially do more harm than good. Bilingual clinical staffers also are discouraged from stepping in if they have not been certified as medical interpreters. But physicians and hospital staff often ignore these policies, typically because of time pressures, lack of knowledge about the availability of professional interpreters, or procedural difficulties in arranging for interpreters. Sometimes it s about intransigence and attitude Participants also reported a sense of mistrust, and a feeling that some providers disliked working with Deaf people. They felt frustrated that, in their view, Deaf people received a different level of care than non-deaf people did. The authors of the study (Steinberg et al. 2006) concluded that Deaf people who use American Sign Language have much in common with members of other linguistic minority groups: limited access to English communication, infrequent contact with health care providers who know their language and culture, and the frequent necessity of using family and friends as interpreters. Steinberg et al. (2006) 4

5 Imagine the possibilities if there are serious misunderstandings in: medical history and symptoms, possible diagnoses and treatment options, results from medical exams and lab tests, drug interaction warnings, informed consent, end-of-life procedures, and, billing and benefits eligibility. Spoken language interpreters are not regulated in Alabama at all (more on this later). ASL interpreters are well regulated but safeguards are ignored and procedures/acquisition becomes ad hoc. MUST be licensed to practice at that level in Alabama. Clinicians are not trained to work with interpreters. This is especially critical in mental health. Attempts to meet the requirement by using contracted remote vendors (VRI). Consumer (That s you!) is not able to determine if the interpreter used is qualified. 5

6 Effective Communication is consumer-defined. In Maine, DeVinney checked herself into Maine Medical Center because she was suicidal. MMC did not provide requested interpreters for a variety of reasons, including that DeVinney (late-deafened but ASL fluent) could speak so well she didn t need them. She was referred for anger management sessions when she became upset over a hospital s refusal to provide auxiliary aids and services in its psychiatric facility. In a bitter irony, the hospital refused to provide auxiliary aids and services for the anger management sessions. Part of settlement, which became a model, was the communication preferences were consumer driven and not the provider s choice of convenience. In 2000, President Clinton signed executive order which extended civil right protections to non-english speaking people. Specifically includes deaf people who prefer ASL. DHHS has published standards for Culturally and Linguistically Appropriate Services. CLAS standards Provide effective, equitable, understandable and respectful quality care and services that are responsive to diverse cultural health beliefs and practices, preferred languages, health literacy and other communication needs. 6

7 Burden of ensuring competence (and appropriateness) of communication access or interpreters on the healthcare provider. You must vet your interpreters. Simply contracting out to a third party is NOT adequate (See Joint Commission HR ). Language preferences must be documents and a communication assessment recorded. The Department of Justice s Barrier-Free Health Care Initiative is a partnership of the Civil Rights Division and U.S. Attorney s offices across the nation to target enforcement efforts on a critical area for individuals with disabilities. The initiative, launched on the 22 nd anniversary of the ADA in July 2012, includes the participation of more than 40 U.S. Attorney s offices. Despite intense effort by advocates at getting some, there are no QA measures specifically addressing CLAS in Medicaid QA matrix. ADMH placed several in their proposed quality measures but all were rejected. Deaf community knows this and they are angry. CLAS stuff is in the RCO contracts, is emphatically not reassuring based on past performance. For some decades, language requiring compliance with 504 and the Americans with Disabilities Act is in almost all contracts and, the case of deaf people, routinely ignored. 7

8 Research demonstrates that in hospital settings, effective communication can result in: Shorter lengths of stay (LOS), Fewer hospital readmissions, Fewer emergency room visits, Better treatment adherence, Better medical follow-up, Fewer unnecessary diagnostic tests, Better healthcare outcomes, Better patient health care satisfaction. Attention to the issue Healthcare providers must take communication access seriously. They must convince the deaf community that they do. Policy that is appropriate and enforced within the hospital. There need to be clear consequences for violations. Mandatory training related to CLAS repeated as needed. Development of statewide interpreter (and clinical) resources that are able to be tapped systematically rather than our current ad hoc processes. Establish regional centers for psychiatric acute care. Large systems should consider full-time staff interpreters. Current law does not (generally) allow for Healthcare providers to bill third-party payers for interpreter costs. Healthcare insurers do not want this cost passed to them. In Alabama, Medicaid does not cover interpreters. Medicare does not cover interpreters. 8

9 Hospitals providing psychiatric care have higher standard to meet. If interpreters are considered less than equal access, then what is failure to provide interpreters? Brings us back to Kate A misdiagnosis with an interpreter is possible, predictable and preventable. The resident s treatment of Kate could be ruled malpractice. What is the legal exposure of the hospital in that case? Hospitals must make this a priority writing a generic policy does not put a qualified interpreter in the treatment setting. contact me at 9

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