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Joel Teitelbaum, Lara Cartwright-Smith and Sara Rosenbaum

Excerpted from: Joel Teitelbaum, Lara Cartwright-Smith and Sara Rosenbaum, Translating Rights into Access: Language Access and the Affordable Care Act, 38 American Journal of Law & Medicine 348 (2012) (179 Footnotes omitted)


More than twenty-four million people in the United States are considered limited English proficient (LEP), and numerous studies have documented the consequences of communication barriers in healthcare. These consequences include: patients' inability to become engaged and involved in their care; the absence of crucial information--including cultural information--essential to healthcare quality; risks to patient safety arising from the misunderstanding of physician instructions; and ethical and legal lapses stemming from the absence of informed consent. Addressing healthcare rights necessarily entails coming to grips with how to facilitate communication and the exchange of information between the healthcare system and an increasingly diverse patient population.

The history of language access services in healthcare is grounded in two distinct bodies of law: the law of informed consent and civil rights law. Modern notions of informed consent law--which have their roots in the Nuremberg trials of the late 1940s--would recognize a cause of action in tort where a lack of adequate communication creates a barrier to an LEP patient's ability to consent to care. In modern healthcare law, the ability of patients to affirmatively give informed consent to treatment is considered a fundamental element of healthcare quality. In addition, a substantial body of civil rights law--specifically, Title VI of the 1964 Civil Rights Act, which bars discrimination in federally supported healthcare activities on the basis of race or national origin, and section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), which together prohibit discrimination against qualified persons with disabilities in public programs and by public accommodations--has extended the principle of language access in healthcare by establishing the concept of communication-related rights.

The Patient Protection and Affordable Care Act (commonly known as the Affordable Care Act, and referred to as the ACA in this Article) borrows from the traditions of both race- and disability-based anti-discrimination law and, in the process, gives new resonance to the nexus of healthcare quality and civil rights law. It does so by introducing a new legal structure for healthcare that seeks to realign the system away from concepts of largesse and toward an expectation of equity, not just in access to health insurance coverage, but in the receipt of healthcare that is appropriate in both level and quality. With time, careful implementation, and effective oversight and enforcement, the ACA has the potential to improve healthcare access and quality for LEP individuals and to reduce communication barriers between patients and providers. The ACA positions the nation for this important advance through a series of reforms, some aimed at reducing barriers to health insurance coverage, some directly aimed at building health system capacity in communities in which it is needed, and some by focusing the nation on the development of national standards that permit the evaluation of quality at the critical sub-population level, where disparities in health and healthcare appear. In essence, the ACA attempts to bend the health equity curve by introducing a legal architecture within the healthcare system that seeks to place its financial transaction dimensions within the broader context of patient outcomes. Viewing the ACA through this lens, it is possible to see its eventual promise even for the most vulnerable populations.

Nonetheless, individual enforcement actions will continue to play a crucial role in defining the rights of patients and the responsibilities of providers. The ACA creates no federal right to healthcare of a certain quality, nor does it immediately broaden the armament of civil rights enforcement tools through new rights of action or a realignment of the burden of proof in disparate impact litigation, the most common type of civil rights case. The ACA offers a heightened set of global and systemic expectations about how the healthcare system will respond to patients, even patients who require some redesigned systems and practices to ensure the achievement of high quality healthcare.

This Article focuses on several aspects of language services law and policy in healthcare. Part II presents evidence regarding the role of communication in healthcare quality as well as evidence of the scope of the language access problem. It also presents a brief overview of the rise of the concept of informed consent as a basic dimension of the law of healthcare quality. Part III traces the evolution of relevant language services in health law and policy, including the Civil Rights Act, the ADA, and other sources of law. Part IV reviews the various ways in which the ACA presents opportunities to advance effective communication in healthcare. Part V concludes with a discussion of the legal, policy, and delivery challenges that remain, including the need for vigilant oversight of relevant ACA provisions and strong enforcement of extant laws to ensure LEP individuals' meaningful access to care.