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PRESCRIPTION FOR

INEQUITY The Struggles of Limited English Proficient Patrons at D.C. Pharmacies


PRESCRIPTION FOR INEQUITY

The Struggles of Limited English Proficient Patrons at D.C. Pharmacies This report was written by the American University Washington College of Law Immigrant Justice Clinic based on information and data collected by Many Languages One Voice (MLOV), a member of the D.C. Language Access Coalition (DCLAC).


ABOUT THE CONTRIBUTORS This report was written by the American University Washington College of Law Immigrant Justice Clinic based on information and data collected by Many Languages One Voice (MLOV), a member of the D.C. Language Access Coalition (DCLAC).

The Immigrant Justice Clinic (IJC) is one of eleven law clinics within the Clinical Program at American University Washington College of Law (WCL). The Clinical Program is designed to give law students the opportunity to represent real clients with real legal problems. The Student Attorneys take on the responsibility of handling litigation, negotiation, and addressing pressing legal issues with institutional clients in order to learn practical lawyering skills. The IJC provides representation on a broad range of cases and projects involving individual immigrants and their communities, both in the D.C. metropolitan area and overseas. Students Attorneys in the IJC regularly appear in immigration court, and may also appear before federal district court, the courts of Maryland and D.C., and before federal and state agencies. Since immigration has a transnational dimension, the IJC occasionally advocates before regional and international bodies. IJC’s work on this report falls under its focus area on civil rights for immigrants, one of four broad substantive areas that the clinic targets in its caseload. The other substantive areas include: immigrant deportation defense and immigration detention; immigrant workers’ rights; and immigration, gender, and sexual orientation. The docket of the IJC is structured to develop in students the skills and values needed to be effective immigrants’ rights practitioners, while also responding to the unmet legal needs of the client community. The D.C. Language Access Coalition (DCLAC) was created under the D.C. Language Access Act of 2004 to aid in implementation of the law. DCLAC is an alliance of more than forty community-based organizations and civil rights organizations, all of which provide services to D.C.’s African, Asian, and Latino communities. In 2007, DCLAC hired its first director, Jennifer Deng-Pickett. In 2009 Jennifer codirected DCLAC with then deputy director Patrick Coonan. After Jennifer left DCLAC in early 2010, Patrick and Sapna Pandya co-directed DCLAC until Patrick transitioned out in 2011. DCLAC is now headed by an executive committee, currently composed of seven members of the Coalition. Many Languages One Voice coordinates the activities and advocacy of the coalition and its committees. DCLAC works to ensure that the D.C. Language Access Act is fully implemented and that all limited English proficient/non-English proficient (LEP/NEP) individuals can equally access public services, programs, and activities by receiving translation and interpretation services in their native languages.


Many Languages One Voice (MLOV) fosters leadership and facilitates community-led initiatives to increase the meaningful inclusion of people in the District of Columbia who do not speak English as their primary language. MLOV addresses this mission through grassroots organizing with local immigrant communities and administrative advocacy. MLOV builds awareness, community power and civic participation by conducting Know Your Rights trainings about the D.C. Language Access Act of 2004 and Civil Rights Act of 1964, as well as training immigrant youth and community leaders from lowwage industries to advocate for their own access to health care services and public education. MLOV also fulfills its mandated role to advise D.C. government regarding effective enforcement of the D.C. Language Access Act of 2004 by administering and playing an active role in the D.C. Language Access Coalition (DCLAC).

ACKNOWLEDGEMENTS The following WCL students contributed substantially to this report: Michelle Assad, Leila Higgins, Reba Kim, and Shannon Zeigler. These students, representing the Immigrant Justice Clinic, were supervised by Professor Jayesh Rathod. The following D.C. Language Access Coalition members and staff at Many Languages One Voice (MLOV) also made significant contributions to this report: Tiffany Finck-Haynes and Sapna Pandya. In addition, both IJC and DCLAC thank Nisha Agarwal and Amanda Meyer at the Center for Popular Democracy for their guidance, Mara Youdelman at the National Health Law Program, Theo Oshiro at Make the Road New York, Jennifer Swayne at New York Lawyers for the Public Interest, designer Erin Burns, and all of the community members who participated in our research effort.


TABLE OF CONTENTS Executive Summary .................................................................................................................................i. Introduction ............................................................................................................................................iii. I.

Case Study: New York ..................................................................................................................1.

II.

Federal & Local Language Access Laws ................................................................................2. A. Federal Laws ..........................................................................................................................2. B. D.C. Laws ................................................................................................................................5.

III.

Surveys and Tests of Pharmacies in D.C. ..............................................................................7.

A. Pharmacy Tests ................................................................................................................8. 1. In-Person Tests ..............................................................................................................8. 2. Telephonic Tests ..........................................................................................................12.

B.

Community Member Pharmacy Surveys ......................................................................13. 1. “Most Recent Experience” Survey ........................................................................13. 2. “Services Received” Survey ....................................................................................15.

IV.

Amending D.C. Law to Include Language Access in Pharmacies ......................................17.

A. Title Seven, Human Health Care and Safety ...........................................................17.. B. Title Forty-seven, Pharmacy General License Law .................................................17. 1. Definitions .................................................................................................................18. 2. Interpretation ...........................................................................................................18.

3. Translation of prescription labels ..........................................................................19. 4. Records ......................................................................................................................20. 5. Rules ...........................................................................................................................20.

C. Title Forty-eight, Prescription Drug Price Information .......................................21.

D. Title Forty-eight, AccessRx Program .......................................................................22. V.

Recommendations ..................................................................................................................23.


Every D.C. resident should understand his or her prescription medication labels, and be able to obtain the correct medication. The consequences of misunderstanding these labels or consuming the wrong drugs can be dire for patients and costly for our city. Providing oral interpretation services at pharmacy counters, prescription label information in a patient’s language, and translation of other key information can improve health outcomes and reduce budget spending on health care by avoiding the costs of having to treat illnesses that result from improperly-taken medication.

EXECUTIVE SUMMARY

The D.C. Language Access Act of 2004 (“the Act”) imposes an affirmative obligation on nearly all D.C. government agencies to provide oral interpretation services for any non-English language and translation of vital documents for languages that meet certain numerical thresholds. The Act imposes additional structural and reporting requirements on agencies that have significant public contact. The Act is part of a line of legislation designed to offer greater government access to national origin and language minorities. Title VI of the Civil Rights Act of 1964, an important piece of federal legislation in this line, states that “[n]o 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.”1 In Lau v. Nichols, the U.S. Supreme Court clarified that a person’s language is so closely related to their national origin that discrimination based on language preference or ability is effectively discrimination based on national origin, which violates the Civil Rights Act.2 Since most chain pharmacies receive federal money in some form or another, particularly through the Medicaid and Medicare programs, Title VI requires that they provide “limited English proficient” and “non-English proficient” (LEP/ NEP) persons with interpretation and translation services. In 2012, LEP/NEP community members in D.C. were surveyed regarding their experiences in acquiring and using medications from local pharmacies. The authors also visited pharmacies all over D.C. to assess the availability of interpretation services, as well as various types of translated information and materials. The results reveal that the vast majority of pharmacies do not notify patients of their right to an interpreter and to translation of their prescription information; indeed, many patients remain unaware of these important rights. In addition, more than half of the pharmacies surveyed did not have any mechanism in place for the provision of interpretation or translation services to LEP/NEP patients. As a result of the gap in language access, many community members have difficulty accessing the vital information that accompanies their prescription medication, and there is little in existing law or regulations to help them.

1 2

42 U.S.C. § 2000d (2010). Lau v. Nichols, 414 U.S. 563 (1974).


Every DC resident should be able to understand his or her prescription labels, and be able to obtain the correct medication.

The inability to understand the instructions for using medication places LEP/ NEP community members at risk for “higher rates of hospital readmission, expensive and unnecessary complications, and even death.”3 The authors therefore advocate for D.C. legislation that would build upon the current law. Specifically, the D.C. Council should consider adding provisions to the D.C. Code that: Require translation and interpretation services in all pharmacies that receive federal or local government funds (“covered pharmacies”). Services should be provided in languages spoken by an LEP/NEP group that makes up either 1% or 300 individuals of the population served by the pharmacy, whichever is less, and should apply to all communications with patients. At a minimum, covered pharmacies should: Ensure that covered pharmacies provide oral interpretation services during business hours and in any recorded telephone messaging systems. Ensure that covered pharmacies translate prescription drug labels and any other literature related to the prescribed medication that is usually provided to patients. Ensure adequate notification of patients’ rights in covered pharmacies, including conspicuous placement of notification at pharmacy counters and translation of that message in the required languages. Develop and implement a mandatory training protocol for all pharmacy staff on how to assist LEP/NEP customers. Institute a plan to monitor covered pharmacies’ compliance with the new law, including a mechanism by which LEP/NEP patients may report noncompliance or abuse. Currently, the pharmacy laws are found in Titles Three, Seven, Forty-seven, and Forty-eight of the D.C. Code. The DCLAA is situated under Title Two of the D.C. Code.4 As described more fully below, a law on language access in pharmacies may be integrated into these sections.

3 Sandra G. Boodman, Many Americans Have Poor Health Literacy, The Washington Post, Feb. 28, 2011, http://www.washingtonpost.com/national/many-americans-havepoor-health-literacy/2011/01/18/ABD2pYK_print.html. 4 D.C. Code §§ 2-1931-1937 (2012).

ii.


Access to health care, including prescriptions, is an increasingly important topic in the United States. Although people depend on prescription medications to treat a variety of health conditions, about 90 million adults in the United States misunderstand at least some of the instructions provided on prescription drug labels.5 The lack of health literacy – the ability to obtain, understand, and use health information – is a growing yet under-recognized problem across the U.S.6 The implications of being unable to correctly understand and use medication information can be costly and dangerous for the individual.7 In addition, treating people for illnesses caused by taking medicine incorrectly or in the wrong doses can bear a heavy toll on the economy with increased visits to the emergency room or repeat visits for untreated illness.

INTRODUCTION

An often overlooked problem involves health literacy issues that arise because a patient does not speak, understand, read, or write English. Over thirty million citizens (14.1%) over the age of eighteen in the United States speak a language other than English at home.8 Of those thirty million people, nearly ten million (32%) of them speak English less than “very well.”9 In the District of Columbia, 14.5% of residents speak a language other than English at home and of those 4.4% speak English less than “very well.”10 The terms “limited English proficient” (LEP) and “non-English proficient” (NEP) are used to refer to individuals who do not speak English as their primary language and who have a limited or no proficiency in reading, writing, speaking, or understanding English. The interplay of language access laws and health-related laws and policies should optimally promote a system in which high-quality care is available to all, regardless of language preference or ability. A growing body of research suggests that language barriers encountered in health care settings may compromise the quality of care that LEP/NEP individuals receive.11 As noted by the Washington Post, “studies have linked problems with health illiteracy, which disproportionately affects [certain groups, including recent immigrants] to higher rates of hospital readmission, expensive and unnecessary complications, and even death.”12 It is estimated that in recent years, these kinds of health problems have cost the U.S. as much as $238 billion dollars each year.13 Surveys conducted by Many Languages One Voice (MLOV), a member organization of DCLAC, show that LEP/NEP patients face significant hurdles in accessing medication and care at pharmacies in D.C.

5 Consumer Reports, Consumer Reports: Pharmacies Don’t Always Provide Required Drug Warnings, The Washington Post, Aug. 29, 2011, http://articles.washingtonpost. com/2011-08-29/national/35269840_1_drug-labels-drug-warnings-prescription-drug. 6 Boodman, supra note 3. 7 William H. Shrank and Jerry Avorn, Educating Patients About Their Medications: The Potential and Limitations of Written Drug Information, 26 Health Affairs 731-40 (2007), available at http://content.healthaffairs.org/content/26/3/731.full. 8 U.S. Census Bureau, Language Spoken at Home-2011 American Community Survey, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview. xhtml?pid=ACS_11_1YR_S1601&prodType=table (last visited Jan. 17, 2013). 9 Id. 10 U.S. Census Bureau, Selected Social Characteristics in the United States, 2007-2011 American Community Survey 5-Year Estimates, District of Columbia, http://factfinder2. census.gov/bkmk/table/1.0/en/ACS/11_5YR/DP02/0400000US11 (last visited Jan. 23, 2013). 11 See generally Elisabeth Wilson, et. al, Effects of Limited English Proficiency and Physician Language on Health Care Comprehension, 20 J. Gen. Internal Med. 800–806 (2005). 12 Boodman, supra note 3. 13 Id.


New York City (“NYC”) and New York State (“NYS”) successfully passed legislation protecting the rights of their residents to be safe and healthy while using prescribed medication by ensuring translation and interpretation services in chain pharmacies. The campaign for prescription medication safety was first launched in NYC in response to growing concern regarding LEP/NEP residents’ lack of access to quality health care. In 2007, New York Lawyers for Public Interest (NYLPI) filed a civil rights complaint on behalf of Make the Road New York with the New York State Office of the Attorney General (OAG) on behalf of community members who were facing barriers to filling and properly using their prescription medications.14 The OAG investigated the claim and entered into settlement agreements with chain pharmacies across the state.15 In 2009, the NYC Council passed the Language Access in Pharmacies Act (LAPA), requiring chain pharmacies in the city to provide translation and interpretation services for LEP/NEP consumers filling prescriptions.16 Nevertheless, health and immigrant advocates, such as NYLPI and Make the Road New York, wanted to ensure that the rights of LEP/NEP persons were protected in the entire state, and so continued the campaign for a state-wide law on language access in pharmacies. Finally, in 2012, NYS enacted the Safe Rx law, mandating that all chain pharmacies provide translation and interpretation for all LEP/NEP individuals.17

CASE STUDY: NEW YORK

In enacting the LAPA, NYC amended its “Consumer Affairs”18 section under the NYC Administrative Code to include regulations on language assistance in pharmacies. The section defines key terms, such as “chain pharmacies,” “competent oral interpretation,” “competent translation,” and “Limited English Proficient Individual.”19 The section also mandates chain pharmacies in NYC to provide interpretation and translation services to LEP/NEP individuals and conspicuously post the availability of such services on or near pharmacy counters.20 At the state level, NYS added language to its “Public Health Law”21 and “Education Law”22 to integrate the state-wide “SafeRx” Law. The Public Health Law specifically requires NYS to include a section for identifying a patient’s need for language assistance services and primary language on Official New York State prescription forms.23 The Education Law addresses language access in pharmacies through its section on “Interpretation and translation requirements for prescription drugs and standardized medication labeling.”24

14 Make the Road New York & New York Lawyers for Public Interest, Rx for Safety 6 (2010), available at http://www.nylpi.org/images/FE/chain234siteType8/site203/client/Rx%20 for%20Safety%20-%20FINAL%20REPORT%20-%2012.13.2010.pdf. 15 Id. 16 4 NY ADC §§ 20-620; 20-621; 20-622; 20-623; 20-624; 20-625. 17 N.Y. Pub. Health Law § 281 (McKinney 2012); N.Y. Educ. Law § 6829 (McKinney 2012). 18 4 NY ADC §§ 20-620; 20-621; 20-622; 20-623; 20-624; 20-625. 19 Id. at § 20-620. 20

Id. at §§ 20-621; 20-622; 20-623.

21 N.Y. Pub. Health Law § 281(2) (McKinney 2012). 22 N.Y. Educ. Law § 6829 (McKinney 2012). 23 N.Y. Pub. Health Law § 281(2) (McKinney 2012) (“requiring that prescription forms and electronic prescriptions include: (a) a section wherein prescribers may indicate whether an individual is [LEP]; and (b) if the patient is [LEP], a line where the prescriber may specify the preferred language indicated by the patient”). 24 N.Y. Educ. Law § 6829 (McKinney 2012).

1.


Language Access for LEP/NEP individuals in D.C. is protected by federal and local laws. On a national level, Title VI of the Civil Rights Act of 1964 (“Title VI”) prohibits recipients of federal funds, including Medicaid and Medicare Parts A, C, and D,25 from discriminating on the basis of language and national origin.26 D.C. laws acknowledge the importance of protecting LEP/ NEP individuals’ access to government services, programs, and activities, as demonstrated by the D.C. Language Access Act (“DCLAA,” or “the Act”). These laws provide a basis for future laws and regulations to ensure that D.C. pharmacies do not violate LEP/NEP individuals’ rights by refusing them service on account of their preferred language.

FEDERAL & LOCAL LANGUAGE ACCESS LAWS

FEDERAL LAWS Federal laws relating to both discrimination on the basis of national origin and access to health care apply to the services LEP/NEP individuals should receive at pharmacies: Title VI of the Civil Rights Act prohibits discrimination on the basis of national origin, including language preference; the Health Insurance Portability and Accountability Act (“HIPAA”) applies to communications with patients about their health care; and several executive orders provide guidance on how pharmacies should treat LEP/ NEP patrons. In 1964, Congress passed Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin.27 Specifically, Title VI prevents any program or activity receiving federal aid or assistance from discriminating on the basis of national origin.28 Failure to provide linguistically appropriate services has been interpreted by the U.S. Supreme Court to be discrimination on the basis of national origin. In Lau v. Nichols,29 a group of students of Chinese ancestry who did not speak English filed suit against the San Francisco school district alleging unequal educational opportunities. The Court found that the policies of the school district were in conflict with the goals of Title VI. By not offering English language classes

25 U.S. Department of Health and Human Services, http://www.hhs.gov/ocr/ civilrights/faq/TitleVl/403.html. 26 42 U.S.C. § 2000d (2006) (“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”). 27 See id. (“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”). 28 Id.; see also Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 65 Fed. Reg. at 50,123, 50,124 (Aug. 16, 2000) (explaining that Title VI requires that recipients of federal aid take steps to make sure LEP/NEP persons have meaningful access and that the guidance is a merely a reiteration of requirements that have been in place since the passage of Title VI). 29 414 U.S. 563 (1974) (emphasizing that any service, financial assistance, or benefit may not be provided in a different way to any individual than that provided to others).


to LEP/NEP students who did not speak English, the school district, which received federal assistance, violated the students’ rights.30 In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA).31 This act protects the privacy of an individual’s health information and governs the way certain health care providers and benefits plans collect, maintain, use, and disclose protected health information.32 Under the HIPAA “Privacy Rule,” covered entities must follow a strict set of guidelines with regard to the use and disclosure of individuals’ health information.33 Additionally, medication dispensed by pharmacies qualifies as protected “health care” and “health information.”34 This rule also lays out standards for an individual’s right to understand and control how her health information is used.35 Pharmacies or any health care providers using unauthorized third parties to translate or interpret health information covered by HIPAA for a patient or customer would be a violation of the law. Originally drafted by President Clinton in 1997, the Patient’s Bill of Rights (PBR) outlines patient rights and responsibilities to address disparities in treatment based on a patient’s insurance, and to improve relationships between patients and providers.36 While compliance with the PBR is only mandatory for federal agencies, many state boards of pharmacy have now adopted their own PBRs, or, in some instances, specific PBRs for pharmacy patients.37 In D.C., pharmacies are required to post notification of the right to consult with a pharmacist in a conspicuous location,38 but D.C.’s Board of Pharmacy has not yet adopted a PBR.

30 Id. 31 42 U.S.C. § 1320d et seq. (2012). 32 See 42 U.S.C. § 1320d-2 (2012) ( establishing standards for information transactions and data elements). 33 See id. § 1320d(4) (defining “health information” as “any information, whether oral or recorded in any form or medium, that—(A) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual”). 34 See id. § 1320d(3) (defining “health care provider” as “any other person furnishing health care services or supplies”); see also Helen L. Figge, HIPAA: Privacy, Security, and Pharmacy Information Technology, U.S. Pharmacist (Nov. 16, 2011), http://www. uspharmacist.com/content/d/techrx/c/31146/ (citing U.S. Dept. of Health and Human Services, Office for Civil Rights, Final Rule: Standards for privacy of individually identifiable health information, 67 Fed. Reg. 53,181, 53,182-53,273 (Aug. 14, 2002) (to be codified at 45 C.F.R. §§ 160, 164). 35 42 U.S.C. § 1320d et seq. 36 Department of Health and Human Services, The Patient’s Bill of Rights in Medicare and Medicaid, U.S. Department of Health and Human Services Archive (April 12, 1999), http://archive.hhs.gov/news/press/1999pres/990412.html; see also Exec. Order No. 13166, 65 Fed. Reg. 50,121 (Aug. 11, 2000) (Improving Access to Services for Persons With Limited English Proficiency). 37 See, e.g., California Department of Consumer Affairs, Board of Pharmacy, Patient’s Bill of Rights,California.gov, available at http://www.pharmacy.ca.gov/consumers/ bill_of_rights.shtml (last visited Jan. 23, 2013); see also Florida Patient’s Bill of Rights and Responsibilities, Fla. Stat. § 381.026 (2012). 38 District of Columbia Municipal Regulations for Pharmacies, § 1919.2, available at http://doh.dc.gov/sites/default/files/dc/sites/doh/publication/attachments/Chapter%20 19_Pharmacies_0.pdf.

3.


On August 11, 2000, President Clinton signed Executive Order 13166, which requires federal agencies to publish language access guidance for their own federally conducted activities. 39 It also requires recipients of federal assistance to clarify what steps agencies must take to ensure LEP/NEPs have meaningful access to their services so that they can ensure that federally funded programs and activities comply with Title VI by being accessible to LEP/NEP individuals.40 An LEP/NEP individual’s inability to communicate with federal agencies or recipients of federal assistance may have a devastating impact, and may prevent the individual from accessing needed services to which the individual is entitled.41 Thus, recipients of federal funding must take reasonable steps to ensure that LEP/NEP individuals have meaningful access to their programs and services.42 In response to its federal obligations and Executive Order 13166, the U.S. Department of Health and Human Services (HHS) regulations interpreting Title VI prohibit federal aid recipients from employing methods or criteria that have the effect of discriminating against individuals because of race, color, or national origin.43 HHS is a federal agency that grants funding to a variety of recipients and runs the national Medicare program.44 HHS guidance and Executive Order 13166 prohibit entities that receive federal assistance, including local health agencies, state Medicaid programs, public and private contractors, subcontractors and vendors, from discriminating on the basis of language ability.45 The regulations also explain that LEP/NEP persons who qualify are “persons seeking health and health related services.”46 Failure to provide language access has a discriminatory impact on the basis of national origin and therefore HHS could take action against the entity for violating Title VI, regardless of any intent to discriminate. HHS’s guidance on this topic requires federal aid recipients to “take reasonable

39 Exec. Order No. 13166, 3 C.F.R. § 289 (2000). 40 See id. (explaining that each agency’s guidance should lay out how the LEP/NEP standards will be applied to its recipients of financial assistance). 41 See Fernanda Santos, Language Help for City’s Immigrants Falls Short of Goals, N.Y. Times, July 7, 2010, http://www.nytimes.com/2010/07/07/nyregion/07translate. html?scp=3&sq=immigrants%20and%20language%20barriers&st=cse (reporting an advocacy group’s claim that the Human Resources Administration’s “failure to comply with the law had ‘deprived individuals of the necessities of life and repeatedly subjected them to humiliating discrimination.’ ”). 42 Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 65 Fed. Reg. 50,123, 50,124 (Aug. 16, 2000) (explaining that Title VI requires that recipients of federal aid take steps to make sure LEP/NEP persons have meaningful access to their programs and services). 43 45 C.F.R. § 80.1 (2012). 44 U.S. Department of Health and Human Services, About Us, http://www.hhs.gov/ about/ (last visited Jan. 17, 2013). 45 Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 47, 313 (Aug. 8, 2003); see also “Title VI of the Civil Rights Act of 1964; Policy Guidance on the Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency,” 65 Fed. Reg. 52,762 (Aug. 30, 2000); see also Improving Access to Services for Persons With Limited English Proficiency, 65 Fed. Reg. 50, 121 (Aug. 11, 2000). 46 Id.

4.


steps to ensure meaningful access to their programs and activities by LEP/NEP persons.”47 It lays out a four-factor standard for federal aid recipients to use in evaluating what is required of them: (1) the number or proportion of LEP/NEP individuals eligible to be served or likely to be encountered by the aid recipient; (2) the frequency with which LEP/NEP individuals will interact with the aid recipient; (3) the nature and importance of the activity involved; (4) the resources and costs available to the aid recipient.48 In addition to these general HHS standards, certain programs within both Medicaid and Medicare have language access requirements geared towards LEP/NEP individuals.49

D.C. LAWS On April 21, 2004, Mayor Anthony Williams signed and enacted the District of Columbia Language Access Act.50 The Act uses a two-tier structure by imposing certain basic obligations on a range of “covered entities,” and then outlining additional requirements for “covered entities with major public contact.” The law also applies to agency contractors and recipients of agency funds. Under the Act, a covered entity is defined as “any District government agency, department or program that furnishes information or renders services, programs, or activities directly to the public or contracts with other entities, either directly or indirectly, to conduct programs, services, or activities.”51 All covered entities must collect data annually about the languages spoken by actual and potential LEP/NEP customers, and capture the numbers of such customers who come into contact with the covered entity through a database and through tracking applications.52 The Act requires all covered entities to provide both oral and written language services.53 Oral language services through in-person or telephonic interpretation must be accessible in all languages.54 To determine what type of oral language services a covered entity must provide, it must annually assess: (1) number of LEP/NEP persons served; (2) frequency with which LEP/NEP

47 Id. at 47,314. 48 Id. 49 See 42 C.F.R. §§ 422.2264, 422.112 (2012) (requiring Medicare advantage plans to provide multilingual marketing materials in those areas where there is a significant non-English speaking population); see also 42 C.F.R. § 438.10. 50 D.C. Code §§ 2-1931 to 2-1937 (2012). The Act is codified in Title 2, Chapter 19, subchapter II of the D.C. Code, and is supplemented by regulations in Title 4, Chapter 12 of the Municipal Regulations. 51 D.C. Mun. Regs. tit. 4 § 1205.1 (2012); see id. § 1205.3 (noting that grantees of the covered entities must also provide the services required by the Act). 52 Id. § 1205.6; D.C. Code § 2-1932(c). 53 D.C. Code §§ 2-1932, 2-1933 (2012); see also id. § 2-1931. 54 D.C. Mun. Regs. tit. 4, § 1205.10; see id. § 1205.7 (discussing how a target language is determined).

5.


persons come into contact with the entity; (3) importance of the service; and (4) available resources.55 Covered entities must provide written translation of vital documents into any non-English language spoken by an LEP/NEP group that makes up either 3% or 500 individuals of the population served by the entity, whichever is less.56 The Act defines “covered entity with major public contact” as a covered entity whose primary responsibility consists of meeting, contracting, and dealing with the public.57 Covered entities with major public contact must fulfill all the obligations of the covered entities and meet several additional requirements. One of those additional requirements is designating a Language Access Coordinator on their staff.58 In addition, the covered entities with major public contact are required to conduct outreach into LEP/NEP communities.59 The D.C. Language Access Coalition (“DCLAC”) is written into this local legislation as the official third-party consultative entity, charged with consulting with the Language Access Director to assist in the establishment of language access plans.60 The government must also consult with DCLAC to designate additional covered entities with major public contact.61 Furthermore, all covered entities must consult data collected and made available by DCLAC in determining the type of language services needed.62

MLOV staff and volunteers collecting community surveys about access to DC pharmacies at DC Africa Day 2012 55 D.C. Mun. Regs. tit. 4 § 1205.7. 56 D.C. Code § 2-1933(a); D.C. Mun. Regs. tit. 4 §§ 1205.16-17 (the D.C. Language Access Act defines “vital documents” as “applications, notices, complaint forms, legal contracts, and outreach materials published by a covered entity in a tangible format that inform individuals about their rights or eligibility requirements for benefits and participation.”) 57 D.C. Code §§ 2-1931(3)(A)-(C). 58 D.C. Mun. Regs. tit. 4, § 1206.3(b). 59 See D.C. Mun. Regs. tit. 4, §§ 1206.4(a)-(p) (listing potential outreach activities of the covered entities with major public contact). 60 D.C. Code §§ 2-1934, 2-1935. 61 D.C. Code §§ 2-1931, 2-1935. 62 D.C. Code § 2-1932.

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SURVEYS AND TESTS OF PHARMACIES IN D.C.

The DCLAA requires all covered entities to provide LEP/NEP individuals with translation and interpretation services. Given that the law applies to various health-related agencies, it is an important benchmark in ensuring that LEP/NEP residents can access the services and information needed to take care of their health. At the federal level, since most chain pharmacies receive federal money in some form or another, particularly through the Medicaid and Medicare programs, Title VI requires that these chain pharmacies provide LEP/NEP persons with interpretation and translation services so that they, like English speakers, can access the pharmacy’s services. According to the federal Centers for Medicare and Medicaid Services State Operations Manual, “Providers are direct recipients of Federal funds and are thus subject to Title VI of the Civil Rights Act of 1964.”63 Since pharmacies are providers who are direct recipients of Medicare and Medicaid, they are subject to Title VI, and must comply with its prohibition against discrimination on the basis of national origin and language.64 Although D.C. law only requires pharmacies to post notification that a patient has a right to speak with a pharmacist, LEP/NEP community members are effectively denied both the notice and the right when signs are not in a language they can understand, and when the pharmacies do not offer interpretation services. Additionally, the information required by the federal Food and Drug Administration to appear on all prescription drugs with the warnings and contraindications is useless to LEP/NEP patients when not made available in their language.65 In 2012, Many Languages One Voice (MLOV), a member of DCLAC, conducted a series of surveys with LEP/NEP community members, designed to capture their impressions and experiences at pharmacies in the District of Columbia. Simultaneously, it conducted calls, and sent community members to pharmacies across D.C. to test the availability of translation and interpretation services. The surveys and tests were designed to identify any obstacles that LEP/ NEP community members might face when attempting to acquire and use medications from pharmacies. The pharmacy tests and surveys were completed by different groups of people with different objectives. The pharmacy tests were conducted by volunteers to determine if the pharmacy had language assistance services. However, the surveys were answered by LEP/NEP D.C. residents. Many of those surveyed have some English speaking capacity and for this reason could understand some information at the pharmacy and some amount of information on their prescription labels. However, none of them were able to access all of the necessary information at the pharmacy.  Additionally, because many of the survey respondents speak some English, they may have been embarrassed to admit they did not completely understand everything, resulting in some response bias. As described below, the results indicate that many people do not understand important signs and information at the pharmacy. 

63 Centers for Medicare and Medicaid, State Operations Manual, Chapter 1, § 1008C, available at http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/ Downloads/som107c01.pdf. 64 See Figge, supra note 34. 65 See, e.g., 21 C.F.R. §§ 201.50 (requiring labels to state identity of the drug), 201.55 (requiring labels to state recommended dosage), 201.56-57 (requirements on content and format of labeling).

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PHARMACY TESTS MLOV and bilingual volunteers conducted tests at D.C. pharmacies to determine if language assistance services are available for various LEP/ NEP populations. In-person testers visited 89 pharmacies in D.C., and calltesters called 74 pharmacies in D.C.. The in-person testers did not speak English to the pharmacy staff, but did bring “I speak” cards, and attempted to communicate through hand gestures and the tested language. The call-testers spoke English and inquired about services available in tested languages.

IN-PERSON TESTS Methods Between June and October 2012, MLOV and bilingual volunteers conducted tests at pharmacies in D.C. to determine if language assistance services are made readily available to pharmacy customers. The test was adopted from New York Lawyers for the Public Interest and Make the Road New York, who had developed the standard survey instrument using New York City’s Language Access in Pharmacies Act (NYC-LAPA)66 as a guide. The testing protocol was designed to determine whether important elements were in place to ensure that LEP/NEP customers were able to access vital services. Through the test, participants posed as LEP/NEP patrons seeking to either fill a prescription, or to consult a pharmacist about an illness such as abdominal pain, fever, running nose, a sore throat, or eye irritation. Services were requested in the primary languages spoken in the District as well as languages falling outside of the primary languages.67 Testers inquired about translation services either by asking in English, presenting an “I Speak” card, or by speaking the tested language to the staff person. The “I Speak” cards are provided by the D.C. Office of Human Rights Language Access Program to assist LEP/NEP individuals in obtaining language services, and contain information on the holder’s language and right to language assistance.68 While only government agencies are required to provide assistance when presented with an “I Speak” card, they do help members of the LEP/NEP community communicate their needs to others who do not speak their preferred language. According to the D.C. Office of Human Rights, currently the largest language minority populations in D.C. speak Amharic, Chinese, French, Korean, Spanish or Vietnamese.69 Testers spoke Amharic, Chinese, French, Korean, Spanish, and Serbian. They tested 89 pharmacies in D.C., visiting a variety of chains including CARE, CVS, Foer’s, Giant, Harris Teeter, Rite Aid, Safeway, Target, Tschiffely, and Walgreens.

66 See infra Section IV – Case Study: New York. 67 The study conducted had some limitations since MLOV did not have the ability to test every pharmacy in the District. Additionally, each test only targeted one language and therefore did not provide information regarding language assistance services at the pharmacy for all languages. Finally, the testers were not patients and could not provide answers to questions posed by the pharmacy. 68 Office of Human Rights, District of Columbia, ‘I Speak’ Cards for Language Assistance, available at http://ohr.dc.gov/ispeakcards. 69 Id.

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Testers were asked to examine adversements and signs posted in the pharmacy for information in the tested language. Findings

This chart shows that, of the pharmacies tested,70 97% did not have any form of notice to patients of their right to an interpreter or translation of their prescription information.

70 This chart reflects only those surveys that answered the relevant questions, and omits a small number of surveys where no answer was provided.

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Nature of Interpretation Services Received

This chart71 shows that, although approximately 48% of the tested pharmacies did arrange for some kind of interpretation, the remaining 52% did not offer any such services for LEP/NEP customers. The 48% figure includes the 5% of testers who received interpretation services from other customers, rather than services provided by the pharmacy. Experiences

None (52%) Bilingual Staff (20%) Language Line (17%) Other (6%) Customer Help (5%)

It is clear from the experiences of the testers that there is no pharmacy chain that is better at providing services to LEP/NEP patrons than others. Those pharmacy locations with staff trained to address LEP/NEP needs were able to effectively assist the testers with getting the appropriate medication. Others either explicitly or effectively refused service to LEP/NEP individuals, and some tried to help, but instead gave the wrong medication. Some testers were assisted by other customers, rather than by resources consistently provided by the pharmacy. Several pharmacists were very willing to assist the LEP/NEP testers, but did not have the resources to do so effectively. Effective Assistance Staff who were given appropriate resources were able to quickly and effectively serve LEP/NEP patrons. For example: [The] staff didn’t speak French, but called Language Line ... [the tester had to] wait [about 5] minutes, but with interpretation, [the staff] showed him [the] proper medication to take. – CVS in Northwest D.C. Refusal of Service Pharmacies that did not have appropriately trained staff typically refused service to LEP/NEP testers, either explicitly or through the effect of their actions. Effective refusal of service included: long wait times, helping English speakers first, or misinforming the testers of how to obtain translation. [The Pharmacist] laughed [because the tester] didn’t know English. They proceeded to ask if anyone spoke “Ethiopian” [sic] and when they determined they didn’t, told her to come back on Monday at 3:00pm when someone in the store would speak Amharic. – Harris Teeter in Northwest D.C. [The pharmacist] said they could translate [the] label and provide interpretation in Spanish because someone on staff is bilingual. However, they would need a note from a doctor [for the tester] to receive the services and it would take a long time to provide the translation for the prescription label. – Apex Care in Northeast D.C. Some pharmacies explicitly refused service to LEP/NEP testers, by either asking the tester to leave, or saying that they do not speak the tested language and refusing to speak to the tester. Those testers experienced the following interactions:

71 This chart is based on the 79 surveys that provided an answer to the relevant question.

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“ ” “ The cashier said, ‘everyone speaks English,’ and asked if [the tester] had a friend who speaks English. When he said, ‘No,’ she said, ‘I’m sorry, I can’t help you.’

[The] staff didn’t speak French, but called Language Line... [the tester had to] wait [about 5] minutes, but with interpretation, showed him [the] proper medication to take.

The pharmacist looked at my “I Speak” Card, then said “I don’t know, I can’t help you.” When I tried to gesture what was wrong, the pharmacist said “I can’t help you, only English” and left the counter to go back into the pharmacy. – CVS in Northwest D.C. The cashier said “everyone speaks English,” and asked if [the tester] had a friend who speaks English. When he said, “No,” she said, “I’m sorry. I can’t help you.” – CVS in Northwest D.C. Ineffective Assistance Some pharmacies did not refuse service to the LEP/NEP testers but did not have appropriate mechanisms in place, often resulting in testers’ receiving misinformation and/or the wrong medication. Such mistakes can be lifethreatening, and greatly increase the risk for LEP/NEP persons to be readmitted to the hospital, or suffer complications from taking the wrong medication or taking medication incorrectly. [The cashier] spoke Spanish and English. Since Spanish is similar to French, she tried to talk to [the tester]... She spoke to him in broken Spanish/English and gave him instructions, but the important information was lost because the description was not clear. – CVS in Northwest D.C. [The] pharmacist didn’t speak French or understand. He told [the tester] to explain and the pharmacist assumed it was a headache and told [the tester] to go to another guy [who] talked to [the tester], looked at the medication the pharmacist had given him and changed the medication to give him the correct medication. – Rite Aid in Northwest D.C. Customer Assistance Some testers, who might have been refused service or given the wrong medication, were lucky enough to have another customer who spoke their language nearby to assist them. These testers were not assisted by any service regularly or consistently provided by the pharmacy, but they encountered a reality for many LEP/NEP residents of D.C.: dependence on luck and good Samaritans for access to health care. When [the tester] started to speak French with the pharmacist, there was a customer nearby that spoke French too…. She worked with [the tester] and the pharmacist and then the pharmacist took [the tester] to the right medication. – Safeway in Southeast D.C.

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TELEPHONIC TESTS Methods MLOV and bilingual volunteers also conducted test phone calls to 74 of the 150 pharmacies in D.C. to determine if language assistance services were made readily available to pharmacy customers. Through the test, participants posed as family members and friends asking if language assistance services were available, or created a scenario and requested services by the pharmacy in a language other than English. Testers spoke to pharmacy staff in English, and asked if language assistance services were available at that pharmacy for a LEP/ NEP family member or friend who spoke only Vietnamese, Korean or Chinese. Findings

s; er vice nother s e c a istan LEP to e ass g d a e r u r fe ng No la but 7% re stance nly , nish o r assi 68% a o p f S y ac e in pharm assistanc e all ag on in i t Langu ) a l s ran (15% tion and t 8%) a t re ) tion ( p r a % l e s t 9 n ( n I ot tra ages langu tion, but n reta Interp

Services Offered, as Reported by Pharmacy Staff Only nine percent of the tested pharmacies reported offering both interpretation of conversations with the pharmacist and translation of written materials in the requested language. Of the 50 pharmacies that did not offer language assistance services, five referred the testers to another pharmacy that they believed could offer the requested services. Eight percent of the tested pharmacies could provide oral interpretation services through either bilingual staff or through the use of language line, but could not print labels or other materials in the requested language. Fifteen percent of the pharmacies offered language services in Spanish only, thereby refusing service to all non-Spanish speaking LEP/NEP individuals. Experiences Many of the pharmacists made a good faith effort to assist the testers, going to great lengths to locate the needed services at other pharmacies in D.C. However, these pharmacies still effectively refused service to the testers by directing them elsewhere: I requested language assistance services for my Korean speaking student. The pharmacist did not speak Korean and apologized for not speaking the language.Thirty minutes after we spoke, the pharmacist called me back and left a message saying he had asked at his own pharmacy if they could find a way to provide the service and had also called several pharmacists in the

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city to see which pharmacy could provide the service. His pharmacy had determined they could find a way to provide the service and he urged me to call him back. – Walgreens Pharmacy in Northwest D.C. [The pharmacist] wanted to help LEP/NEP patients, but only used Google Translate, not certified language assistance tools to provide the service. [Uncertified] tools such as Google Translate do not provide accurate translations 100% of the time. – Sterling Pharmacy in Northeast D.C. The pharmacist wanted to provide language assistance services, but, as he wasn’t a certified translator, he referred the patient to a pharmacy in Chinatown that he believed would be able to provide the service. – Tschiffely Pharmacy in Northwest D.C. Similarly to the in-person testers, call-testers experienced some hostility and explicit denial of service to LEP/NEP individuals: The [tester] had to call the pharmacy several times because the pharmacy personnel blatantly refused to service [the tester] first by pretending to not understand, and second by pretending the call had bad signal, despite the fact that the test was performed on an office land line, which has a clear connection. – Rite Aid in Northeast D.C. The [tester] was transferred four times, hung up on twice, and laughed at before being told the pharmacy could not offer language assistance services. – St. Elizabeth’s Hospital Pharmacy in Southeast D.C.

COMMUNITY MEMBER PHARMACY SURVEYS Between June 2012 and October 2012, MLOV and bilingual volunteers spoke to LEP/NEP community members at language schools, community centers, cultural events, and community activities to gain insight into the experiences of those individuals at pharmacies. Fifty-two surveys, consisting of sixteen questions, asked LEP/NEP community members to recall their last visit to a D.C.-area pharmacy. One hundred fifty-two surveys, consisting of four questions, asked LEP/NEP community members about services they had received at D.C. area pharmacies.

“MOST RECENT EXPERIENCE” SURVEY Methods MLOV conducted 52 surveys, consisting of 16 questions, with Chinese- and Spanish-speaking LEP/NEP persons regarding what they remembered from their most recent pharmacy visit. While the results of these surveys may not represent all LEP/NEP residents of the District of Columbia, they do provide insight into the frustrations faced at D.C. pharmacies by members of the LEP/ NEP community.  

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Findings

This chart shows that many LEP/NEP community members are often unable to understand signs, pamphlets, or the vital information in the printed materials that are attached to their prescription medication. Not understanding the contraindications and directions for using their medication places LEP/ NEP community members at a much greater risk for “hospital readmission, expensive and unnecessary complications, and even death.�72

This chart shows that the vast majority of LEP/NEP individuals surveyed cannot understand the prescription information, warning labels, or important paperwork given to them by the pharmacy because they are not available in a

72 See generally Wilson, et. al, supra note 10; see also Boodman, supra note 3. 14.


“ ” My son did not buy his eye medicine because no one in the pharmacy understood what he was asking for.

language they understand. These individuals are therefore denied access to the safety mechanisms put in place by regulatory agencies, such as the FDA.73 Experiences Several of those surveyed explained to the volunteers that they were unable to get the necessary medication due to a lack of language services. My son did not buy his eye medicine because no one in the pharmacy understood what he was asking for. – LEP Resident at El Salvador Cultural Festival Many LEP/NEP community members explained that they bring family or friends who speak English to assist them, though these friends and family often have limited skills, and may be unable to provide accurate interpretation. Others said that they only go to certain pharmacies because others do not have language access services, or they feel discriminated against by the staff.

“SERVICES RECEIVED” SURVEY Methods MLOV conducted a 4-question interactive survey at cultural fairs, service fairs, community centers, language schools, political rallies and through neighborhood outreach asking 150 LEP/NEP community members representing 50 countries74 throughout the world the following questions about their experiences with language assistance services at pharmacies: 1) When a pharmacist realized that you spoke another language, did the pharmacist write the bottle label in your language? 2) Have you ever spoken on the phone to someone in your language? 3) Have you ever had to bring a family member or friend to the pharmacy because the pharmacy didn’t have anyone that spoke your language? 4) Has the pharmacy ever printed important forms in your language? 

73 See, e.g., 21 C.F.R. §§ 201.50 (requiring labels to state identity of the drug), 201.55 (requiring labels to state recommended dosage), 201.56-57 (requirements on content and format of labeling). 74 Countries include: Argentina, Bangladesh, Bolivia, Bulgaria, Chile, China, Columbia, Cuba, Dominican Republic, Ecuador, Egypt, El Salvador, France, Germany, Honduras, India, Iran, Israel, Korea, Libya, Malta, Mexico, Nepal, Netherlands, Nicaragua, Pakistan, Saudi Arabia, Somalia, Spain, Sudan, Russia, Syria, Turkey, and Venezuela.

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Findings

Over 80% of those surveyed were not able to get important information in writing that they could understand, including warnings, indication, contraindications, or directions for use.

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Over 80% of those surveyed were not able to get important information in writing that they could understand, including warnings, indication, contraindications, or directions for use. The surveys also showed that the majority of those surveyed had adapted to the reality of reduced access to language services by bringing friends and family members to interpret, regardless of that person’s qualifications to convey complex medical information. One survey participant offered the following story about her mother’s experiences with pharmacies in D.C. [My mother’s main language is] Chinese; she speaks very little English and does not read or write English at all. As she has grown older, the amount of medication she takes has grown, too. In order to fill her pill case, she memorizes the color and shape of each pill she has to take instead of pill names because she can’t understand her prescription labels [which are] written in English. Usually this method works for her, but on several occasions, the shape and color of the pill has changed. [Sometimes] instead of taking it once she would double the dosage thinking it was a different pill. Very often this caused very bad side effects and resulted in dizziness and [a faint] feeling.


AMENDING D.C. LAW TO INCLUDE LANGUAGE ACCESS IN PHARMACIES

The D.C. Code has several sections relating to pharmacy laws and one section on language access—the D.C. Language Access Act (DCLAA). The pharmacy laws are found in Titles Three, Seven, Forty-seven, and Forty-eight of the D.C. Code. The DCLAA is under Title Two of the D.C. Code. A law on language access in pharmacies may be integrated into one or all of the above-referenced sections, with the exception of Title Three, which mandates the D.C. Board of Pharmacy to regulate the pharmacy practice in general.75 The D.C. Council should consider adding a provision on language access in pharmacies under: (A) Title Seven, Human Health Care and Safety; (B) Title Forty-seven, Pharmacy General License Law (D.C. Code § 47-2885 (2012)); (C) Prescription Drug Price Information (D.C. Code §§ 48-801-04 (2012)); and (D) The AccessRx Program (D.C. Code § 48-831 (2012)).

TITLE SEVEN, HUMAN HEALTH CARE AND SAFETY Since incorrect use of prescription medications by LEP/NEP individuals is a human health care and safety issue, Title Seven of the D.C. Code could provide a safeguard by requiring language assistance services in pharmacies.76 For instance, Title Seven can include a new subtitle solely dedicated to prescription safety through language assistance services in pharmacies. Another option is to include a new subchapter under Subtitle J, Public Safety, of Title Seven since safe prescription medication usage is a public safety concern.

TITLE FORTY-SEVEN, PHARMACY GENERAL LICENSE LAW Subsection 2885 [also known as “Part C”] of Title 47, Chapter 28, Subchapter IV, defines numerous pharmacy-related terms, speaks to the licensing of pharmacies and pharmacists, regulates the practice of pharmacy, and establishes a “Board of Pharmacy [in D.C.] in order to protect the public health and welfare.”77 Therefore, Part C is another section suitable for integrating provisions on language access in pharmacies.

75 D.C. Code § 3-1202.08 (2012). 76 7 D.C. Code. 77 D.C. Code § 47-2885 (2012).

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DEFINITIONS Part C’s definition section78 should include the following new definitions: (18) “Competent oral interpretation.” Oral communication in which the interpreter comprehends a spoken message and can re-express that message faithfully, accurately and objectively in another language, utilizing all of the necessary pharmacy- and health-related terminology. (19) “Competent translation.” A written communication in which the translator comprehends a written message and can re-write that message faithfully, accurately and objectively in another language, utilizing all of the necessary pharmacy- and health-related terminology. (20) “Language assistance services.” Competent oral interpretation and translation of labels and documents. (21) “Limited English Proficient individual” or “LEP/NEP individual.” An individual who does not speak English as his/her primary language and who has a limited ability to read, write, or understand English.79 (22) “Primary language.” The language identified by a LEP/NEP individual as the language to be used in communicating with such individual. (23) “Pharmacy primary languages.” The languages spoken by 1% or more of the pharmacy’s customers as determined by the pharmacy’s prescriptionmanagement system for the previous year, beginning one year after the effective date of this section. (24) “Bilingual pharmacist” or “Bilingual pharmacy intern.” Pharmacists or pharmacy interns legally qualified to conduct medication counseling who have the fluency and knowledge of the relevant health-related and pharmaceutical terminology to provide such counseling in another language in addition to English.

INTERPRETATION A new subsection under Part C may be integrated to mandate pharmacies to provide interpretation services. The subsection can be modeled after New York City’s mandate80: a. Every chain pharmacy shall provide free, competent oral interpretation services to each LEP/NEP individual filling a prescription at such chain pharmacy in the LEP/NEP individuals’ primary language for the purposes of counseling such individual about his or her prescription medications

78 Id. § 47-2885.02. 79 D.C. Mun. Regs., tit. 4, § 1126 (2012) (offering a consistent definition in the DCLAA Regulations); see also D.C. Code § 2-1931 (defining Limited or No-English Proficiency as “the inability to adequately understand or to express oneself in the spoken or written English language”). 80 See N.Y. Educ. Law § 6829 (McKinney 2012).

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or when soliciting information necessary to maintain a patient medication profile, unless the LEP/NEP individual is offered and refuses such services. b. Every chain pharmacy shall provide free, competent oral interpretation of prescription medication labels, warning labels and other written material to each LEP/NEP individual filling a prescription at such chain pharmacy, unless the LEP/NEP individual is offered and refuses such services. c. The services required by this section may be provided by a “bilingual pharmacist” or “bilingual pharmacy intern” or a third-party paid or volunteer contractor.81 Such services must be provided on an immediate basis but need not be provided in-person or face-to-face in order to meet the requirements of this section.

TRANSLATION OF PRESCRIPTION LABELS Canvassing and street survey for Access Rx Campaign, Adams Morgan Day festival

A provision on prescription labeling already exists in the D.C. Code.82 Language can be added to that particular provision to require translation. The complete provision would read as follows: All drugs shall be dispensed in a suitable container appropriately labeled for subsequent administration to or use by an individual entitled to the drug. Any drug dispensed, except to inpatients of a licensed hospital, shall include on the label of the container the name of the drug and the strength of the drug when applicable, unless otherwise directed by the prescribing practitioner, and the name, address and telephone number of the pharmacy filling the prescription, the prescription number, the date of issuance and the name of the prescriber, directions for use, the name of the individual for whom the prescription is written, and other information and labeling which may be required by any District of Columbia or federal laws or regulations. Every pharmacy shall provide free, competent translation of medication labels, including warning labels, and patient information sheets in the appropriate language for every LEP/NEP individual who speaks one of the pharmacy’s primary languages. Nothing in this subsection shall prohibit the pharmacy from providing dual-language medication labels and patient information sheets, such that the label or information sheet may be read and understood in both English and the relevant non-English language. Every pharmacy shall provide oral interpretation of medication labels, including warning labels, for LEP/ NEP individuals who do not speak one of the pharmacy’s primary languages.

81 Such contractor must provide interpreters who are trained and qualified to interpret in the medical field. 82 D.C. Code § 47-2884.14.

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RECORDS Language on keeping records of a pharmacy user’s primary language and of a pharmacy’s actual provision of language assistance should also be integrated into the D.C. Code. The existing provision, which appears under section 472885.15, “Records”, at subsection (a) provides: “There shall be maintained in every pharmacy, or in the establishment or institution where a pharmacy is located, a suitable book, file, or other easily retrievable record, in which shall be preserved for a period of not less than 2 years every prescription compounded or dispensed at said pharmacy.”83 Subsection (a) can be modified to include: (a) . . . [(1)] “every prescription compounded or dispensed at said pharmacy,” (2) the primary language of all individuals who fill prescriptions at the pharmacy, and (3) a record of whether interpretation or translation services were needed and provided when prescriptions were filled. The following can also be added to the “Records” section: (d) Every pharmacy’s prescription-management system shall include a mandatory field to record the primary language for all individuals who fill prescriptions at the pharmacy. (e) For all prescriptions filled, the pharmacist shall include records of whether interpretation or translation services were needed and provided when such prescriptions were filled.

RULES Section 47-2885.18(a), entitled “Duties of Mayor” provides that “The Mayor shall: (1) Administer and enforce the provisions of this part; . . . [and] (3) Adopt and publish such regulations as may be necessary for the implementation of this part . . . .”84 Therefore, implementation of the added provisions on language assistance may also be delegated to the Mayor. Subsection (a)(3) may be modified to include the following: (L) The requirements to assure that pharmacies shall provide oral interpretation and translation services to LEP/NEP individuals.

83 D.C. Code § 47-2885.15(a). 84 D.C. Code § 47-2885.18 (2012).

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TITLE FORTY-EIGHT, PRESCRIPTION DRUG PRICE INFORMATION Title 48, Chapter 8(1), Subchapter II regulates what information pharmacies are required to post. The Office of Consumer Protection (“OCP”) is responsible for furnishing each pharmacy with a poster that contains information about the 100 most commonly used prescription drugs and a list of professional and convenience services available, among other things.85 Free language assistance services for LEP/NEP consumers could be added to the list of services under Section 48-801.02(4). The new provision could also require that OCP translate all of the services into all of the primary languages spoken by LEP/ NEP consumers. Language assistance could be integrated in other subsections of Title Forty-eight, including the subsections on “Completion and Display of Posters”86 and “Definitions.”87 The “Completion and Display of Posters” can be modified as follows: On and after each issue date, each pharmacy shall legibly post on the poster its current selling prices for the 100 most commonly used prescription drugs, the professional and convenience services it offers and the additional charges therefor, the rights to free language assistance services for Limited English Proficient individuals as provided for in § 47-2885 in all of the pharmacy primary languages, and the eligibility and terms of any discount it offers on prescription drugs. The completed poster shall be displayed prominently in the immediate vicinity of the prescription drug service area in such a manner as to be easily visible to consumers without having to obtain permission or assistance of an employee of the pharmacy. The “Definitions” subsection can be modified as follows: (12) “Language assistance services” shall mean competent oral interpretation and translation of documents; (13) “Limited English Proficient individual” or “LEP/NEP individual” shall mean an individual who identifies as being, or is evidently, unable to speak, read or write English at a level that permits him/her to understand health-related and pharmaceutical information; and (14) “Pharmacy primary languages” shall refer to the languages spoken by 1% or more of the pharmacy’s customers as determined by the pharmacy’s prescription-management system for the previous year, beginning one year after the effective date of this section.

85 D.C. Code § 48-801.02 (2012). 86 D.C. Code § 48-801.03 (2012). Enforcement of this section is already provided for under “Enforcement” at § 48-804.01. 87 D.C. Code § 48-804.51 (2012).

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TITLE FORTY-EIGHT, ACCESSRx PROGRAM Subchapter 1 of Chapter 8A of Title 48 establishes the AccessRx program “to reduce prescription drug prices.” The program is administered by the D.C. Department of Health, and states “[t]he Department shall administer AccessRx and other medical and pharmaceutical assistance programs in a manner that is advantageous to the programs and to the enrollees in those programs. In implementing this subchapter, the Department may coordinate the other programs and AccessRx and may take actions to enhance efficiency, reduce the cost of prescription drugs, and maximize the benefits to the programs and enrollees, including providing the benefits of AccessRx to enrollees in other programs.”1 Section 48-831.03(b) could be amended to include: In developing the program, the department shall take steps to ensure that program information and drug discount cards are made accessible to Limited English Proficient individuals. Along with amending Section 48-831.03(b), Section 48-831.02, “Definitions,” and Section 48-431.15 “Annual Summary Report,” should also be amended. The “Definitions” section should be amended to include: (21) “Language assistance services” shall mean competent oral interpretation and translation of documents; (23) “Limited English Proficient individual” or “LEP individual” shall mean an individual who identifies as being, or is evidently, unable to speak, read or write English at a level that permits him/her to understand health-related and pharmaceutical information; and (24) “Pharmacy primary languages” languages spoken by 1% or more of the pharmacy’s customers as determined by the pharmacy’s prescription-management system for the previous year, beginning one year after the effective date of this section. The “Annual summary report” section currently reads as: “The Department shall submit a written report on the enrollment and financial status of AccessRx to the Council by the 2nd week of January each year.”2 This section should be amended to read as: “The Department shall submit a written report on the enrollment and financial status of AccessRx, the number Limited English Proficient individuals enrolled in AccessRx, and a list of pharmacy primary languages to the Council by the 2nd week of January each year.”

1 2

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D.C. Code § 48-831.03(b) (2012). D.C. Code § 48-831.15.


This section discusses specific recommendations for the development and implementation of regulatory provisions for language access in D.C. pharmacies. We recommend that the D.C. Council: Require translation and interpretation services in all pharmacies that receive federal or local government funds (covered pharmacies) for languages preferred by an LEP/NEP group that makes up either 1% or 300 individuals of the population served or likely to be served by the pharmacy, whichever is less, in all communications with patients. Such a requirement is in line with the current requirements under the DCLAA.

RECOMMENDATIONS

Ensure that covered pharmacies provide oral interpretation services during business hours and in any recorded telephone messaging systems. Pharmacies should be required to have interpreters available in person or by telephone in the required languages at all times. This will ensure that all patients receive prescription drug information and counseling in a language they understand, and without unreasonable wait times. Ensure that covered pharmacies translate prescription drug labels and any other literature related to the prescribed medication that is usually provided to patients. Pharmacies should be required to provide written translations of prescription drug labels in the required languages. This provision will help patients who are LEP/NEP understand how to take their prescriptions. Ensure adequate notification of patients’ rights in covered pharmacies, including conspicuous placement of notification at pharmacy counters and translation of that message in the required languages. Notification is essential to ensure that both patients and pharmacists are reminded of the availability of language assistance services and are encouraged to use the services. Develop and implement a mandatory training protocol for all pharmacy staff on how to assist LEP/NEP customers. Training should be provided both for staff directly providing the translation and interpretation services, and also all staff who should follow a specific set of procedures for connecting the LEP/ NEP persons to the staff member or language line who can provide services in the required languages. Institute a plan to monitor covered pharmacies’ compliance with the law, including a mechanism by which LEP/NEP patients may report noncompliance or abuse. Monitoring helps protect both the pharmacy and the patient by providing the guidance needed to prevent the liability that may result from a pharmacy’s failure to provide appropriate translation and interpretation services. It also provides consumers with access to better services.

23.


American University Washington College of Law Immigrant Justice Clinic 4801 Massachusetts Avenue Washington, D.C. 20016

Many Languages One Voice 3166 Mount Pleasant Street NW Washington, DC 20010

www.wcl.american.edu EO/AA University and Employer

www.mlovdc.org 202.621.0001

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