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Consumer info fact sheets  translated into WA’s threshold written languages   (Chinese, Lao, Khmer ( Cambodian), Korean, Russian,  Somali, Spanish, and Vietnamese) were posted on Dec. 16, just one week before the deadline to start an application for coverage to be effective Jan. 1, 2014. In an unrelated development, HBE  decided on this brief extension  for completing applications due to various  problems people have had in being able to use the online forms and or access phone customer services.  Regarding the translated fact sheets, it’s taken almost 6 months for their publication to replace the original problematic versions that were taken down from the site.
However, the new fact sheets are not easy to find as they are not posted on the consumer website,  but located exclusively on the HBE corporate website.  The corporate site features a line at top right-hand side of homepage entitled “Information in Other  Languages” which links to the fact sheets page, plus also links out to the consumer website.  In contrast, the consumer Healthplanfinder site (which is in both  English and Spanish) does not offer any such subject line, nor does it display a link to corporate site.  The Healthplanfinder site likewise does not contain any readily visible clear statement of consumer  language access or disability access rights, except for a message in tiny font on bottom of the homepage that says [sic] : If you need additional language or disability accomodations, you may call 1-855-WAFINDER (1-855-923-4633)  On the Spanish version of the website, this statement illustrates yet another example of  faulty translation, as the term “disability accomodation” is twice translated, and very ungrammatically, as  “discapacidad alojamiento”  which means disability lodging.  Sure enough, a quick check on Google Translate  English > Spanish reveals  “lodging” as the first  translation for “accommodation.”  Since 2012 advocates had been recommending the inclusion of multilingual tag lines and/or translated summaries sections for the website. Interpretersymbol

Information on some metrics for the Healthplanfinder call center became available last week with the release of the  November Healthplanfinder Data Report. On the language access side of things (p.10 of the report)  the numbers are not encouraging: the call center received almost 12,000 calls in Spanish, but handled only some 1600 of them. The call center in Spokane has bilingual Spanish-English staff (reported as 6 out of 80 employees at start-up) on site and routes calls in other languages to a telephonic interpreter service. For calls in all languages besides Spanish combined, 1045 were actually handled (answered)out of 3621 calls attempted. The report does not state if the multilingual calls are included in the totals for approximately 35,000 calls  handled in November or the almost  158,000 calls throttled (deflected from the system, i.e. not put into the queue to await a response).  While the HBE is said to be increasing staffing for the call center,  any increases planned for its language capacity are as yet unknown. Given the demand, it would seem that Spanish-speaking callers too could benefit from immediate access to interpreter services.

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The irony was not lost for me that while writing on the positive results of the FDA’s use of  translation services, that here in my state, once known as a national leader in language services, we are still struggling to get quality translations for our Health Benefits Exchange (HBE).  The efforts  to achieve this goal have been a major focus for the Washington State Coalition for Language Access, and its been a year now since we co-authored with Northwest Health Law Advocates the report Language Access in Washington under the Patient Protection & Affordable Care Act  expressly for the HBE efforts. Now with 175,000 enrollees, Washington State deserves the praise it’s getting for the record-breaking enrollment figures in the new health insurance  marketplace Washington Healthplanfinder, WA_Healthplanfinder_RGBespecially compared to the situation in neighboring Oregon and to the federal Healthcare.gov platform. But the picture is much less rosy regarding providing equal access for Washingtonians with limited English proficiency (LEP), who now number some 8% of state population or half-million residents, representing an increase of 210 % in the past decade . Demographic data on enrollees is said not to be available.

We are now less than 2 weeks away from the enrollment deadline for coverage to start Jan. 1, 2014, and the consumer fact sheets that were intended to inform the public of the options under the ACA have not yet been made available to Washington’s LEP population. Even though work began in July to replace the problematic original translations – errors brought to HBE’s attention by advocates- there are still no consumer fact sheets available in Washington’s  threshold languages ( in written form these are: Chinese, Lao, Khmer, Korean, Russian, Spanish, Somali, and Vietnamese).

In addition, the Spanish versions of the paper application for Healthplanfinder, while continuing to be publicly available, have contained horrific translation errors.  In the section  which inquires about the applicant’s citizenship status, the phrase ” Non-citizen legally present in the US”  was translated into Spanish to mean just the opposite,  i.e., the translation says “ non-citizen not legally present….”  ACA, complete with the  I-word in Spanish in version #1.  After the mistake was identified on Oct. 15 , again by advocates,  staff said they took immediate action to have the vendor correct it.  The screenshots included here show the sections containing the mistranslations.

Spanish version #1

And yet, advocates identified that the new translation contained the same error, just written with different wording.   Here is Spanish version #2, as it appeared on Nov. 14: Screen shot 2013-12-05 at 11.00.31 AM

This one particular error may now have been recently corrected  for a 3rd iteration, through volunteer  efforts of local language access advocates trying to beat the clock to help consumers. However, we hear anecdotally that more translation concerns persist and can’t be confident that there are not similar errors in the translations in the other languages.

What remains a mystery is how this sorry state of affairs has come about, and if there were ever robust quality assurance measures in the procurement chain for the translations. It is beyond comprehension how such blatant errors could be made given that the work was done by vendors holding official State contracts who must affirm that they use  qualified translators and proper translation procedures. And if this is happening in Spanish, the 2nd most used language in both our State and nationally,  and thus one for which there is an ample number of nationally-certified translators available to do the work, there is a real reason to fear that similar egregious errors may exist in other language translations.

Shortly before Thanksgiving, HBE staffers announced  at a meeting of its Health Equity Technical Advisory Committee, that work halted back in June to create a Language Access Plan  (LAP) for the HBE requested by the TAC , will resume in the new year.  LAPs are meant to serve as blueprints to guide the work of agencies and programs to comply with the laws requiring they provide language services, and  to help prevent the kind of  problems that we’ve being seeing here in the other Washington.  I’ll continue to report on the work in progress.

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Several national health advocacy groups have put out an alert about some key changes to language access standards that have just been proposed for the communication responsibilities of certain federal agencies which regulate private health care plans. As we move forward towards the enactment of health care reform, it is critical that  everyone, including LEP individuals, have the same rights to get access to to plan information and help with insurance appeals.  Health insurance is of course a critical part of access to health care and thus of any individual’s health status. Communication is an essential part of health and health care.  Lack of communication access causes both personal harm and contributes to health inequalities between population groups, plus drives up health care costs for people and systems.  If the new proposed standards are enacted, they would roll back current rules which private insurance companies must follow to ensure language access for plan beneficiaries.

What you can do: there is a very short window of opportunity now available for  individuals and organizations to voice their concerns by submitting comments online to the federal government via a dedicated website.  The deadline for submissions  is 2 p.m, PDT, on Monday July 25 !

For details about this critical issue, and instructions on how to submit comments along with suggested language, please read the following memo from the National Senior Citizens Law Center (NSCLC), the Asian Pacific American Legal Center (APALC), and the National Health Law Program (NHeLP):

URGENT: Comments Needed on Important Language Access Standard

NSCLC, APALC and NHeLP asking advocates to submit by July 25

IMPORTANT: Please provide comments to the Centers for Medicare and Medicaid Services (CMS), Internal Revenue Service (IRS) and the Department of Labor (DOL) on proposed regulations governing private health care plans.  The regulations as proposed are a significant step backward from the version issued in 2010 and affect about 12 million individuals. They change the existing standards for oral interpretation and written translation in unprecedented ways. Please send in comments now and urge colleagues and networks to also take action.  

 The deadline for submitting comments to CMS on this proposed rule is 5 pm Eastern Time on Monday, July 25, 2011.

The National Senior Citizens Law Center (NSCLC), the Asian Pacific American Legal Center (APALC), and the National Health Law Program (NHeLP) urge you to submit comments using the guidelines below. Then, please spread the word to your listservs, networks, colleagues, and affected beneficiaries, near and far, who may care about language access issues!

Issue:  CMS, IRS and the DOL’s Employee Benefits Security Administration (EBSA) have jointly issued regulations governing the internal claims and appeals and external review processes for private group health plans and health insurance issuers (note: this does not directly impact Medicare and Medicaid plans).

These rules were first promulgated as interim final regulations in June 2010, and were relatively strong. After industry complaints, they were amended as of July 2011, and significantly watered down. The public has this opportunity to comment.

Here are the three major language access issues relating to internal claims and appeals and external review:

  1. Written translations for group health plans: The threshold for determining whether translation of vital documents is required is set at: 10% of county population for group health plans. Formerly this was at 10% of plan participants in a given language or 500 persons, whichever is less; where a group plan has less than 100 participants, 25% was used.
  2. Written translations for individual plans: The threshold for this group is also 10% of county population. This was set based on the Medicare Part C and D marketing regulation (a proposal that has since been changed as of 4/15/11 to 5%, as a result of many persons submitting comments against the 10%).  
  3. Oral interpretation: Although it has been well settled that civil rights law mandates that oral interpretation should be provided in the health and health insurance contexts for all languages, the proposed regulations set a new precedent and require oral interpretation ONLY in the languages that meet the 10% threshold.  This is a major issue that needs to be addressed.

The new proposed standards completely fail to recognize the needs of the approximately 12 million limited English proficient individuals in the United States that are estimated to be affected by these regulations. Many of these individuals may receive marketing materials and calls in their primary languages, but will not be able to access plan review and appeals under the new rules. Even Spanish speakers will be left out in most of the country, as only 172 counties meet the 10% county population threshold for Spanish (out of 3,143 counties in the United States). Besides Spanish, the new proposed translation threshold is met by Navajo in 3 counties (1 county each in AZ, NM, UT), Tagalog in 2 counties (both in AK), and Chinese in one county (CA). Only 177 counties would require translated materials. Only one county in the entire nation would have translations in more than one language: the Aleutians West Census Area (population of 5,505 total persons) would have Spanish and Tagalog translations.

We need everyone – even advocates that don’t usually work on private insurance issues and those who have never commented on a federal rule – to take action now.

What You Can Do: 

1. FILE COMMENTS:

a)   Go to   www.regulations.gov

b)   Enter keyword or ID as “group plan” and hit the “SEARCH” button

c)   Scroll down and choose “Group Health Plans and Health Insurance Issuers: Internal Claims and Appeals and External Review Processes” and click on “submit a comment” on right side

d)   Although the regulation is proposed by three agencies, you only need to submit once. The agencies will share the information.

e)   Paste in the comments below and edit them, or write your own, then “Submit.”

f)   You are not required to fill out other fields, although it may be helpful to provide your affiliation. If you wish, you may be anonymous.   Comments submitted are viewable online (after a processing period) by the general public.

SAMPLE COMMENT:

On behalf of [organization/myself], I wish to comment on the 10% threshold for translation and oral interpretation of private plan materials in the internal review and appeals contexts. I am… [add 1-2 sentences about yourself, organization or work with LEP individuals].  The 10% standard is far too high.  A more appropriate standard would be “5% of the plan’s population or 500 persons in plan’s service area, whichever is less” for large group plans, and 25% of population for small plans. Oral interpretation should be provided in all languages at all times. {Consider adding information about the impact on your clients when they cannot get documents in a language that they understand.}

2. Forward this email to all of your contacts – other advocates, providers, interpreters, beneficiaries affected, and urge them to also file comments.  The more comments filed, the more CMS/IRS/EBSA are likely to pay serious attention to this issue.

3. If you are bilingual or work with LEP populations, consider having them file comments in other languages as well as in English, for impact.

For more information about commenting and the proposed regulations, see www.nsclc.org and www.healthlaw.org .  Please feel free to submit detailed comments if you prefer.

Katharine Hsiao  khsiao@nsclc.org

Georgia Burke  gburke@nsclc.org

Kevin Prindiville kprindiville@nsclc.org

Mara Youdelman  youdelman@healthlaw.org

Doreena Wong dwong@apalc.org

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On tonight’s evening news, King 5 TV, our local CBS affiliated carried a story about a Microsoft worker who lost his job after being diagnosed with leukemia.  Duncan Sutherland came forward after after seeing another report the night before about  Ken Knightley, a Microsoft worker who is now being denied paid leave to undergo treatment for a brain tumor.   Knightley told reporters that he was informed that his request for paid leave under the company’s short-term disability plan, was denied because at Microsoft  links disability pay to performance reviews.  When Knightley’s severe symptoms had caused him to miss work for medical care, he had been unable to fulfill some project deadlines. He then received a negative performance review, despite his excellent track record and promotions during his 11-year tenure with the company.  His future uncertain, he now also may lose his home if he needs to go out on long-term disability, for which there is a 6-month waiting period.  Sutherland shared that his own experience was similar, and  King 5 reports that they have been contacted by other former Microsoft employees who shared similar experiences. Microsoft has declined to speak to the media, stating it cannot discuss personnel matters.

Listening to these stories was a déjà vu experience for me on an issue that still doesn’t seem to be going away. Fifteen years ago this month I was laid off from my job at a large private child & family service agency after being diagnosed with lymphoma. During several weeks of  diagnostic tests, I’d re-arranged my work schedule in collaboration with my co-workers and supervisor. One of the administrators had asked me what kind of accommodations  I needed, and I indicated my need for a flexible schedule.  I took off 5 days for the first cycle of chemotherapy in order to rest up for returning to work. When I came back the following Monday, I was called into a meeting where I was told that my job had been eliminated , effective that week. I was not offered an exit interview, not given  information on how to sign up for COBRA, nor advised that I was eligible to receive benefits from the disability plan I’d been paying into over the years.  I was not allowed to either use or cash out my several months-worth of accrued sick and vacation leave, and I later learned that an request by my co-workers to donate sick leave to me had been denied by the agency.

I pursued legal action and had to endure a mediation session where the employer lied , claiming that they had no idea that I was sick and that the department that I worked in was being shut down and my job was simply the first one to be eliminated. The employer further claimed that this was part of a secret business plan that employees had not been told about, as we had been given a written document describing the expansion of the department.  Although my attorney felt  my case was strong, the Bush-era EEOC issued a negative ruling, saying that they could not second guess a business plan. At this point, my condition was worsening and the attorney urged me to settle , to avoid a protracted  and expensive case. Later I learned  that there had been agency employees at other sites who also had been laid off when they got sick. A  memo was evidently later circulated  expressing regrets that some  situations may not have been been handled appropriately, and  instructing supervisors on how to avoid  future untoward situations.

Over the years I have met and heard of others here in  western Washington who suffered similar treatment,  including Seattle journalist Jeanne Sather who was fired in 2000 by OnHealth  who had hired her specifically to write a column about her experiences of living with breast cancer. When a recurrence forced Jeanne to alter her work schedule, OnHealth let her go.

And even for those whose jobs are in workplaces required to comply with the Americans with Disabilities Act, the law is not much protection when employers use every artifice to get around the requirements, especially in at-will employment states like ours.  Workers who even have sick leave that may become a source of contention are in a better position than most, as some 38% of US workers have no sick leave at all, according to data compiled from federal government sources by the Economic Policy Institute.   The study found the ranks of haves and have-nots correlate along economic lines with only 19% of low-wage workers (mostly service workers)  having paid sick days, compared with 86% of high-wage workers. While there is  no federal or state mandate for paid sick leave, there is no excuse for the behavior of  thriving mega-corporations like Microsoft who have chosen to offer employees benefits and then manipulate them in ways that harm their workers. These cases illustrate once again too what’s wrong with a system that links health insurance with employment.

For locals interested in this issue , the Seattle Coalition for a Healthy Workforce will be holding a town hall meeting on the evening of May 11 to discuss the needs of some 190,000 Seattle workers who have no paid sick days.

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Things are still beyond grim as the work on Washington State’s  budget continues. However, on February 4, there was a more hopeful sign when the  Senate approved its version of the Supplemental Budget, including a provision to continue the Basic Health Program, although in reduced scope, by drawing on the Life Sciences Discovery Fund. The  LSDF was established in 2005 from WA’s share of national tobacco settlement funds.  Both the Governor’s budget and the one previously approved by the House had cut  BHP, along  with the DSHS long-standing  interpreter services program for  Medicaid and CHIP patients  These potentially promising developments however have garnered less attention than another set of proposals in HB 1847 ,which would  to sustain funding for BHP by eliminating tax exemptions for Big Banking,  and sales taxes on elective cosmetic surgery and private jets. 

While advocates regard these developments as positive, the struggle is far from over. The Supplemental budget is now undergoing the reconciliation process by both houses and will needs the Governor’s approval; the Biennial budget  will have its turn next. Both contain deep cuts in virtually every area of life affecting Washingtonians, with the worst cuts affecting the most vulnerable populations, especially immigrants and refugees. WA Budget cuts 2011.

The history of these two programs is of particular note at this critical time.  The original intent of the Master Tobacco Settlement Agreement was to fund health services in the states for those affected by smoking.  At the time, Gov. Gregoire, aware that the state would come into additional funds from that source by 2009, planned a move to combine them with private monies to develop a biotech sector.  In a  2005 commentary prescient of current threat of extinction for the Basic Health Program (which began as a 1987 pilot project and became permanent in 1993) the Seattle Weekly had reported:

It will be controversial because originally the tobacco settlement money was supposed to be used to help states offset the health care costs associated with smoking. In 2003, when Gary Locke floated an idea similar to the Life Science Discovery Fund—he called it Bio21—Senate Majority Leader Brown told Seattle Weekly she didn’t like the idea of using tobacco money for biotechnology. “We are one of the few states that has remained true to using that money for health care,” she said at the time. Expect the debate over the best use of the tobacco money to continue.

As I had written previously, in late October 2010, after the Governor had issued her call for “across the board budget cuts” from every state agency, the LSDF awarded $5 million to a private company engaged in personalized medicine research.  Last week, LSDF awarded $600,000 in commercialization grants to four research projects.

The Interpreter Services program also was created as a result of federal litigation, in this case as a result of a 1991 Consent Decree negotiated with the Office of Civil Rights in response to lawsuits and civil rights complaints filed against DSHS for failing to provide equal access to services for clients with limited English proficiency  By law, in this case the Civil Rights Act of 1964, title VI, recipients of federal funds must not discriminate against program beneficiaries on the basis of race, color, or national origin.  Courts have defined lack of language access as a form of discrimination based on national origin. However, the responsibility to fund language services is ultimately that of providers. Since  techncially Washington funded the DSHS program voluntarily, it is now able to seek to de-fund it, unlike other mandatory programs. But in doing so, the state would also forgo specific federal funds that it has been receiving that have covered 50-75% of the total costs, as the Washington State Coalition for Language Access explains in a fact sheet:  WASCLA DSHS Interpreter Services Talking Points January 2011

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A front-page article published on February 1 by  The Seattle Times, now the Emerald City’s  sole remaining daily newspaper, purporting to describe new state demographic trends, is causing outrage at a very critical time. At this very moment  the draconian cuts proposed by the Governor to balance the budget, are the subject of  contention in the Legislature  as advocates  struggle to convince lawmakers to preserve at least the semblance of a safety net .  The program cuts would disproportionately affect poor immigrants and refugees and communities of color, as the planned terminations cut deeply into a range of services from state food assistance, citizenship programs, Medicaid medical interpreter services, to health insurance plans which now cover noncitizen adults and some 27,000 children enrolled in the Children’s Health program of Apple Health for Kids, among other vital services.  In addition, other bills being considered would promote racial/ethnic profiling of state residents, including requiring citizenship checks of applicants for drivers’ licenses to those targeting youth for incarceration on the basis of presumed but not proven gang affiliations.

So it seems like more than a coincidence that the Times story Illegal-immigrant numbers in state jump 35% in 3 years was published the day before the Senate Ways & Means Committee was to hold a hearing on the 2011 Supplemental Budget bill which encompasses all of the cuts. The Times article discussed a just-released report from the Pew Hispanic Center  entitled Unauthorized Immigrant Population:
National and State Trends, 2010,
about  results of the Census Bureau’s Current Population Survey. Beyond  just the damage that the inflammatory  and dehumanizing language of the article’s title can cause in the court of public opinion , it turns out that reporter Lornet Turnbull  got his facts wrong too.  Subsequently Jeff Passel, one of the authors of the Pew report, was interviewed by a reporter for local radio station.   Passel said that based on the Census data, there was no evidence that Washington’s undocumented population had increased, pointing to the high margin of error in the data analysis and its very small sample size, and more pointedly, that the Seattle Times had not done fact-checking with Pew.  The  Feb. 3 interview Dispute About Growth Of Undocumented Immigrants In Wash. can be heard in its entirety on the KUOW website.

In these desperate economic times, articles like this one in the Seattle Times serve only to scapegoat all immigrants for the economic woes of the state (and the nation) instead of focusing on the genuine causes of the recession.  Over 400 comments  have been posted in response so far, most of them of a hate-mongering nature.  Recognition that Washington’s regressive tax structure means that all of us contribute at the same (sales tax) rate to state coffers, regardless of immigration status or income, is handily overlooked by the ranters. Interestingly, the Times has posted a partial correction to the article, explaining that undocumented people constitute a small  fraction of the state’s population

A previous version of this story incorrectly stated that illegal immigrants accounted for nearly 5 percent of the state’s population, giving Washington the seventh highest rate of illegal immigrants in the nation. A Pew Hispanic Center report, on which the story was based, incorrectly attributed the percentage and ranking to Washington state rather than to the District of Columbia. The center has corrected the information in its online report to reflect that illegal immigrants comprise 3.4 percent of Washington state’s population, a rate that does not rank it among the top 10 states.

The story’s problematc title and other content inaccuracies however remain the same, its damage done.  Use of attention-grabbing headlines is a journalistic technique of course; likewise  fewer readers ever bother to go back to read corrections.

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From Pharmalot, May 24, 2010:

Wyeth Marketing Targeted Blacks Illegally: Lawsuit

A pair of former hospital sales reps filed a whistleblower suit alleging Wyeth, which is now owned by Pfizer, illegally promoted its Rapamune kidney transplant drug for use with other organs and targeted African-Americans, even though this is a high-risk patient group, according to the product labeling ………..

<snip>

“Despite limited data on high-risk patients, Wyeth targeted transplant centers that catered primarily to African-American patients, typically in urban areas……………  Wyeth also instructed reps to use journal articles, including one published in Transplantion in July 2002 to off-label market Rapamune to African-Americans for combinations that were not approved by the FDA…………….

From Oncology NEWS International, May 13, 2010:

Global cost-sharing programs for pricey drugs fall short

Survey results indicate patient access schemes in the UK and the U.S. need refinement.

With the cost of cancer drugs increasing at a rate that is generally thought to be unsustainable, many countries are faced with the difficult question of how to ensure access to these drugs without breaking the financial resources of individuals and systems paying for them……….

From BBC News,  June 3, 2010

Cancer fund cash ‘will run out’

Making more cancer drugs available could cost far more than government estimates according to a BBC investigation.The government has allowed for a £200m cancer drug fund to pay for more cancer treatments from next year. But the cost could rise to £600m based on figures from drug manufacturers and the National Institute for Clinical Excellence (NICE).

<snip>

Health economist Professor Alan Maynard……………..said many of the cancer drugs were portrayed as wonder drugs when they only extend a patient’s life by three to four months.”The pharmaceutical companies’ PR has been first class.”

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