The Diversity Is in the Details: Unintentional Language Discrimination in the Practice of Applied Behavior Analysis
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Individuals with limited English proficiency face more challenges accessing applied behavior analysis (ABA) than their English-speaking counterparts. Many federal and state laws have been enacted to ensure the civil rights of protected classes, and Section 1557 of the Affordable Care Act (ACA, 2010) builds on those laws and explicitly establishes a cause of action (i.e., a basis to sue) against health care providers, including ABA providers, who discriminate against patients on the basis of race, color, national origin, sex, age, or disability. A patient’s language falls under the scope of national origin, and most health care providers, including behavior analysts who deliver ABA as medically necessary treatment, have a duty to ensure that patients who are Limited English Proficient (LEP) have the same access to the provider’s services as English-speaking patients. Knowledge of this provision of the ACA is critical to its compliance and, more importantly, to ensuring that behavior analysts rise to the challenge that the goal of true diversity represents. Note: Many terms are used interchangeably to describe insurance carriers, insurance issuers, health plans, and managed care organizations, as well as practitioners of applied behavior analysis. In this article, insurance carriers, insurance issuers, health plans, and managed care organizations are referred to as payors, and practitioners of applied behavior analysis are referred to as behavior analysts or ABA providers.
KeywordsApplied behavior analysis, ABA Autism, ASD Affordable Care Act, ACA Obamacare, Section 1557, diversity, interpreter, health care, discrimination LEP, Limited English Proficient
No funding was received for this study.
Compliance with Ethical Standards
Conflict of Interest
Julie Kornack declares that she has no conflict of interest. Ariana Cernius declares that she has no conflict of interest. Angela Persicke declares that she has no conflict of interest.
This article does not contain any studies with human participants or animals performed by any of the authors.
- Arizona Health Care Cost Containment System. (2017). Cultural competency, language access plan, and family/patient centered care. In AHCCCS contractor operations manual (Chapter 405). Retrieved from https://www.azahcccs.gov/shared/downloads/acom/acom.pdf.
- Baio, J., Wiggins, L., Christensen, D. L., Maenner, M. J., Daniels, J., Warren, Z., et al. (2018). Prevalence of autism spectrum disorder among children aged 8 years—Autism and developmental disabilities monitoring network, 11 sites, United States, 2014. MMWR Surveillance Summaries, 67(6), 1. https://doi.org/10.15585/mmwr.ss6706a1.CrossRefPubMedPubMedCentralGoogle Scholar
- Behavior Analyst Certification Board. (2017). Professional and ethical compliance code for behavior analysts. Retrieved from https://www.bacb.com/wp-content/uploads/170706r_compliance_code_english.pdf.
- Board, B. A. C. (2018). US employment demand for behavior analysts: 2010–2017. Littleton, CO: Author.Google Scholar
- Center for Medicare and Medicaid Services. (2016). Appendix A—top 15 non-English languages by state. Retrieved from https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Appendix-A-Top-15.pdf.
- Center for Medicare and Medicaid Services (2018). Medically unlikely edits. Retrieved from https://www.cms.gov/Medicare/Coding/NationalCorrectCodInitEd/MUE.html.
- Cernius, A. (2016). No imbecile at all: How California won the autism insurance reform battle, and why its model should be replicated in other states. Harvard Law & Policy Review, 10, 567.Google Scholar
- Department of Health and Human Services Office for Civil Rights. (2016). Section 1557 of the Affordable Care Act: A civil rights training for health providers and employees of health programs and health insurance issuers [PowerPoint slides]. Retrieved from https://www.hhs.gov/sites/default/files/section1557-training-slides.pdf.
- Health Care and Education Reconciliation Act of 2010, P.L. 111-152 (HR 4872), 42 U.S.C. 18001 (2010).Google Scholar
- Lello, A. (2015). RE: Market regulation handbook standard: Section 1557. Retrieved from https://www.naic.org/documents/committees_d_market_conduct_exam_standards_exposure_naic_consumer_rep_150903_comments.pdf.
- LEP.gov. (n.d.). Frequently asked questions. Retrieved from https://www.lep.gov/faqs/faqs.html#OneQ1.
- Mann, C. (2014). Clarification of Medicaid coverage of services to children with autism. CMCS Informational Bulletin. Retrieved from https://www.medicaid.gov/federal-policy-guidance/downloads/cib-07-07-14.pdf.
- Nondiscrimination in Health Programs and Activities, Final Rule. 81 Fed. Reg. 96, 45 C.F.R. Pt. 92 (2016). pp. 31376–31473. Retrieved from https://www.gpo.gov/fdsys/pkg/FR-2016-05-18/pdf/2016-11458.pdf.
- Patient Protection and Affordable Care Act, P.L. 111-148 (HR 3590), 42 U.S.C. 1305 (2010).Google Scholar
- Patient Protection and Affordable Care Act, Title I, 42 U.S.C. 18001 §1557 (2010).Google Scholar
- Rosenbaum, S. (2016). The affordable care act and civil rights: The challenge of section 1557 of the affordable care act. The Milbank Quarterly, 94(3), 464–467 Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5020150/.CrossRefGoogle Scholar
- Schuh, M. (2017). This is why Section 1557’s language access rules must be preserved. Retrieved from https://www.helloglobo.com/blog/this-is-why-section-1557s-language-access-rules-must-be-preserved.
- Seng, L. D., Jakubowski, K. N., & Compton-Brown, A. B. (2016). Affordable Care Act Section 1557: New rule, new requirements for healthcare providers, The National Law Review. Retrieved from https://www.natlawreview.com/article/affordable-care-act-section-1557-new-rule-new-requirements-healthcare-providers.
- St. Amant, H. G., Schrager, S. M., Pena-Ricardo, C., Williams, M. E., & Vanderbilt, D. L. (2018). Language barriers impact access to services for children with autism spectrum disorders. Journal of Autism and Developmental Disorders, 48, 333–340. https://doi.org/10.1007/s10803-017-3330-y.CrossRefPubMedGoogle Scholar
- United States. (2010). Compilation of patient protection and affordable care act: As amended through November 1, 2010 including patient protection and affordable care act health-related portions of the health care and education reconciliation act of 2010. Washington, DC: U.S. Government Printing Office.Google Scholar
- Unumb, L. S., & Unumb, D. R. (2011). Autism and the law: Cases, statutes, and materials. Carolina Academic Press.Google Scholar
- Virues-Ortega, J., Rodríguez, V., & Yu, C. T. (2013). Prediction of treatment outcomes and longitudinal analysis in children with autism undergoing intensive behavioral intervention.Google Scholar
- Youdelman, M. (2017). Medicaid and CHIP reimbursement models for language services National Health Law Program. Retrieved from https://healthlaw.org/resource/medicaid-and-chip-reimbursement-models-for-language-services/