RISK TIP

CULTURAL DIVERSITY CREATES LANGUAGE BARRIERS: REDUCING CLAIMS WITH MULTILINGUAL PATIENTS

RICH CAHILL, JD, VICE PRESIDENT AND ASSOCIATE GENERAL COUNSEL, AND SUSAN SHEPARD, MSN, RN, SENIOR DIRECTOR, PATIENT SAFETY EDUCATION, THE DOCTORS COMPANY

Ms. D., a naturalized U.S. citizen from Southeast Asia, presented to Dr. P. for a consultation regarding extensive acne scarring on her face and neck. The patient reported that she felt self-conscious about her appearance and sought advice on possible treatment options. According to the chart, Ms. D. spoke limited English. Her reading proficiency was not noted. >>

Following an examination of the affected area, Dr. P. offered CO2 laser resurfacing. The benefits and potential disadvantages of the procedure were discussed, including the possibility that her complexion type posed an increased risk of scarring and changes in pigmentation. Ms. D. subsequently agreed to undergo laser resurfacing and signed a written consent that specifically identified scarring and changes in skin color as possible postoperative outcomes.

The patient returned the following week. The treatment record ref lects that Dr. P. performed the procedure under local anesthesia and conscious sedation. The surgery was uneventful, and no intraoperative complications occurred.

Ms. D. presented on numerous occasions over the next several months. Hyperpigmentation was noted, and Solaquin Forte 4% and Pramosone lotion were prescribed. At one point, the patient complained of experiencing a burning sensation on her face. Approximately one year after the procedure, Ms. D. returned for further evaluation. The scarring was barely visible; the discoloration on her neck was noticeably improved. However, the patient expressed dissatisfaction with the result.

Ms. D. thereafter retained counsel and initiated suit alleging causes of action for medical malpractice and negligent inf liction of emotional distress. In substance, the patient claimed that because of her limited proficiency with English and the failure by the physician to utilize any translation services, including for any preoperative documentation, there was no informed consent.

PROVIDING LANGUAGE SERVICES: OBLIGATIONS AND BENEFITS

Clear and unambiguous communication constitutes the key component of the physician-patient relationship. Misunderstandings often create frustration and distrust, especially when an adverse event occurs, and can result in professional liability litigation or reports to state medical boards and third-party payers by disgruntled patients and family members. Proactively implementing office procedures for both physicians and staff to promote optimum communication reduces the risk of surprise and the potential for expensive, protracted, and unpleasant disputes.

With our culturally diverse national population, including many who speak a language other than English at home, language barriers raise the risk for an adverse event. The Department of Health and Human Services (HHS) Revised Guidance Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient (LEP) Persons outlines the requirements for recipients of federal financial assistance from HHS to take reasonable steps to ensure LEP persons have access to language services. (These recipients do not include providers who only receive Medicare Part B payments. However, providers that receive funding from any government program such as Medicaid or Medicare Advantage are subject to the requirements.)

To determine the extent of the obligation to provide language assistance, analyze the following four factors:

• Number: The greater the number or proportion of LEP persons served or encountered by your clinic, the more likely language services will be needed.

• Frequency: Even if unpredictable or infrequent, there must be a plan for providing language assistance for LEP persons.

• Nature: Determine whether a delay in accessing your services could have serious or life-threatening implications. The more important the nature of the services you offer, or the greater the consequences of not accessing treatment, the more likely language services will be needed.

• Resources: Consider the resources available and the cost to provide them. As a solo practitioner, you are not

expected to provide the same level of service as a large, multispecialty group. Investigate technological services or sharing resources with other providers.

It is not recommended to use a family member as an interpreter. Lay personnel are rarely familiar with medical terminology. Additionally, the patient may not want a family member to access their confidential health information.

An adult family member should serve as interpreter if a family member must be used—unless no adult is available, and care must be provided immediately to prevent harm. It is preferable to have a trained clinical staff member provide interpretation; alternately, your practice can use certified interpreter services. Consult your local hospital or the patient’s health plan for a list of qualified interpreters. Other resources include a local nationality society, the Registry of Interpreters for the Deaf, or the local center for the deaf. Also, keep consent forms—especially for invasive procedures—translated into the applicable non-English languages by a certified translator.

The Agency for Healthcare Research and Quality (AHRQ ) has prepared a guide, Improving Patient Safety Systems for Patients With Limited English Proficiency, which recommends that practices focus on the following:

• Medication use: Understanding medication instructions is complicated for all patients, but even more difficult for LEP patients. Both patients and providers need to communicate accurately about mode of administration, allergies, and side effects.

• Informed consent: Obtaining informed consent remains a hallmark of patient safety and a critical medical and legal responsibility. Achieving truly informed consent for LEP patients may require extra effort, but LEP patients should not be excluded from learning about choices that might affect their health and well-being. • Follow-up instructions: Understanding discharge instructions is especially challenging for LEP patients. Speaking Together: National Language Services Network, a project funded by the Robert Wood Johnson Foundation, which created the Speaking Together Toolkit, found the need for greater use of interpreters at key moments of information exchange, such as at assessment and discharge—not just during the acute phase of treatment.

Relatively simple communication tools can provide some helpful solutions. These include:

• AskMe3™: R x for Patient Safety: Ask Me 3

• The teach-back method: AHRQ: Use the Teach-Back Method: Tool #5

• The SHARE approach: AHRQ: The SHARE Approach—Using the Teach-Back Technique: A Reference Guide for Health Care Providers

• Patient experience surveys: The Doctors Company: Patient Experience Surveys

To protect your patients from harm resulting from their LEP, develop and implement a plan for language access in your practice. For more information, see the Centers for Medicare and Medicaid Services’ Guide to Developing a Language Access Plan.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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PROTECT ACCESS AND CONTROL HEALTH CARE COSTS FOR CA PATIENTS; Oppose the so-called “Fairness for Injured Patients Act”

Late last year, wealthy out-of-state trial attorneys filed an initiative for the November 2020 ballot that would substantially raise health care costs for all Californians, reduce access and exploit patients for profit. While most reporting to date has focused on the proposed changes to California’s existing law—the Medical Injury Compensation Reform Act (MICRA)—this misguided initiative would effectively eliminate California's medical lawsuit limits to create new financial windfalls for California's trial lawyers.

Proponents of this measure must collect 623,212 valid signatures, which must be verified no later than June 25, 2020. Recent reports show that they’re on track to meet those numbers and qualify for the November ballot, which is why we need your commitment to oppose this dangerous initiative now more than ever.

In 2014, our coalition fought and handily defeated Proposition 46, clearly saying NO to changes in MICRA that would have quadrupled the cap on non-economic damages. This measure goes far beyond what Proposition 46 would have done and the cost to taxpayers would be substantially greater. As recently noted by the independent Legislative Analyst Office, the "Fairness for Injured Patients Act" will cost California taxpayers tens of millions "to high hundreds of millions of dollars annually" in health care costs.

Proposition 46 taught us the power of a strong coalition, and this time around it will be even more important. To learn more about the new initiative, and to donate to the “no” campaign, please visit protectmicra.org. >>

WHAT IS MICRA AND WHY IS IT IMPORTANT?

In the mid-1970s, California physicians were embroiled in a malpractice insurance crisis. Driven by frivolous lawsuits and excessive jury awards, medical liability insurers levied massive insurance premium increases and canceled insurance policies for many physicians across the state. The situation worsened in early 1975 when malpractice carriers announced that premiums for some physicians would increase by as much as 400 percent, effective May 1. Many medical physicians had four choices, none of them acceptable: Raise fees and make medical care unaffordable for many patients, drop their professional liability insurance coverage, leave the state, or quit practicing medicine.

Seeking a stronger focus on the issue, the California Medical Association (CMA) channeled physician outrage into a massive grassroots campaign that mobilized thousands of physicians, patients, and other medical professionals to call and write their legislators to demand that the state act to cut the cost of malpractice insurance.

On May 13, 1975, CMA led more than 800 physicians, nurses, lab technicians and hospital personnel in a Capitol rally calling on then Governor Jerry Brown to convene a special session of the Legislature to deal with the crisis. Three days later, on May 16, Brown yielded, issuing a proclamation for a special session that began on May 19. Negotiations and legislative hearings that involved CMA and other health care providers, the insurance industry and trial lawyers continued until September 11, when the Legislature passed AB 1XX, a collection of statutes that is now known as the Malpractice Insurance Compensation Reform Act (MICRA).

Governor Brown signed the CMA-supported bill on September 23, 1975, and MICRA today remains the model for national medical liability tort reform, as the law has been hugely pivotal in making access to care a reality for patients.

Fast forward to current times, and on November 4, 2014, the voters of California spoke loudly and definitively, sending the trial lawyers’ attempt to change MICRA (Proposition 46) to a solid defeat by a vote of 67 percent to 33 percent. The message was clear – Californians don’t want to increase health care costs and reduce health access so trial attorneys can file more lawsuits. An increase in the MICRA cap on noneconomic damages has been rejected in California again and again: 10 times in court, five times in the Legislature and overwhelmingly by voters in 2014.

The efforts of the California Medical Association (CMA) and the component medical associations across the state proved what we can do for the future of health care, the quality of medicine and the dedication to patients everywhere.

A COMMUNITY BUILT ON

COLLABORATION

Doctors Hospital of Manteca is excited to introduce a fi rst-of-its-kind resource for physicians and patients in Manteca: the da Vinci Xi robot. Local access to roboticassisted surgery techniques provides doctors the ability to oer helpful benefi ts for treating a range of conditions with less invasive surgery, shorter hospital stays, faster recovery times and less scarring.

2019 YEAR IN REVIEW

In the legislative, legal and regulatory arenas, the California Medical Association won key victories to improve public health, expand access to care, remove administrative burdens and ensure physicians are fairly compensated for the work they do. We will build on these victories in the new year to ensure California’s physicians have a strong voice in Sacramento and in Washington, D.C., and that we can transform our state’s health care system into a model for the entire nation.

Led the fight to pass SB 276, which cracks down on fraudulent medical exemptions for childhood vaccinations.

Sponsored AB 744, which revamps the rules regarding telehealth services to increase access to care and ensure physicians are fairly compensated for telehealth services.

Secured $2.2 billion in provider rate increases through the Proposition 56 tobacco tax.

CalMedForce awarded $76 million in tobacco tax revenues to fund more than 300 physician residents across the state.

Grew our membership to record levels, now representing more than 46,000 California physicians.

Announced the first ever CalHealthCares awards, which will pay off $67 million in student loans for 240 physicians and 38 dentists who commit to see more Medi-Cal patients.

Recouped more than $1.3 million from payors on behalf of CMA’s physician members.

Fought legal battles to ensure access to women’s health care and for care for immigrants and transgender patients. Secured passage of new federal regulations that strengthen enforcement of EHR interoperability to allow health providers to better share medical information.

Supported a state-level individual mandate to strengthen the Affordable Care Act in California.

Practice News and Resources

Free to SJMS/CMA Members!

The Offi ce Managers Forum empowers physicians and their medical staff with valuable tools via expert led educations sessions from industry professionals who are committed to delivering quality healthcare. This monthly forum is held on the second Wednesday of the month from 11am- 1pm at Papapavlo’s Bistro in Stockton and includes lunch. Attendance is always FREE to our members. Nonmembers are welcome may attend one session free to experience one of the quality benefits of SJMS membership ($35 thereafter). Registration is required.

For more information or to be added to the mailing list, please contact Jessica Peluso, Membership Coordinator at Jessica@sjcms.org or (209) 952-5299

March 17, 2020 • 11am-1pm 2020 Employment Law Update Each year, the area of employment law changes and evolves. Come learn about the new laws that will affect your business in the new year. Topics covered will range from recruiting and hiring to leave of absence issues to pay stub requirements.

Speaker: Jamie Bossuat from Kroloff, Belcher, Smart, Perry & Christopherson Jamie represents private and public employers in a wide range of matters including sexual harassment, disability discrimination and accommodation, age and sex discrimination, pregnancy and medical leave, wage claims, and whistleblower retaliation. She is a frequent presenter on issues involving employers.

April 8, 2020 Cancelled for Spring Break

May 13, 2020 • 11am-1pm New Laws Effecting Physicians 2020 Presented by Stacey Wittorff, Senior Legal Counsel at CMA

June 10, 2020 • 11am-1pm Customer Service: Improving the Patient Experience by Seeing it Through Their Eyes Presented by Mitzi Young, Physician Advocate for CMA and RCMA

NEWS Noridian will Reprocess Claims Impacted by Errors

Noridian, the California Medicare

contractor, has recently advised that it will begin reprocessing claims impacted by errors in the Centers for Medicare and Medicaid Services (CMS) Geographic Practice Cost Indices (GPCIs) file.

In the proposed 2020 Medicare Physician Payment Rule, California Medical Association (CMA) physician analysts Edward Bentley, M.D., and Larry DeGhetaldi, M.D., found numerous errors in the California geographic payments. After CMA notified CMS, those errors were corrected in the final rule. However, Drs. Bentley and DeGhetaldi found that CMS made additional mistakes with the California geographic payments in the final rule. Once again, CMA notified CMS and they have acknowledged the errors. CMA continued working with CMS to make the changes to ensure accurate Medicare payments are made to California physicians in 2020 and 2021 and to avoid recoupments in future years.

Now that the corrected payment amounts are in its system, Noridian will begin to process and mass adjust all affected claims beginning the week of February 10, 2020. Physicians do not need to take any action.

Physicians with questions can call (855) 609-9960 or visit the Noridian website for more information.