Risk Management

Bridging Language Barriers

By Paul Weber, JD

OMIC’s vice-president of risk management

Digest, Winter 2001

 In August 2000, the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) published guidelines for compliance with Title VI of the 1964 Civil Rights Act as it applies to persons who speak little English, or have limited English proficiency (LEP). Title VI assures that no person shall be discriminated against on the basis of color, race or national origin under any program that receives federal monies, including Medicare and Medicaid. The OCR guidelines mandate the policies and procedures for identifying individuals with limited English proficiency and the steps for providing “effective communication” in the form of language assistance and interpreter services.

Q How do I determine whether my practice is in compliance with federal guidelines?
A First, assess the number of LEP patients your practice treats on a regular basis and all the primary languages spoken by these patients. Involve all front and back office staff in the assessment process to ensure that you include the complete range of languages spoken by patients in your practice. Even if your practice cares for a large number of Spanish speaking patients, don’t assume Spanish is the only language for which you might have to provide assistance. In many areas of the country, there is no one dominant foreign language spoken. Document this assessment process.

Q How will my practice comply with federal guidelines if my patients speak many different foreign languages?
A Among other factors, the OCR takes into account the size of the practice and the frequency with which other languages and LEP patients are encountered. The OCR emphasizes flexibility, focusing on the “end result” and whether the practice has taken steps to ensure that LEP patients have access to the physician’s services. If 30% or more of the patients seen in your practice are Spanish speaking, clearly you will want to ensure that the practice has an ample number of Spanish speaking staff and physicians and/or interpreter services available. It’s also important to provide written information, such as informed consent documents, in a patient’s spoken language. If you do not treat many patients who speak a particular foreign language, you may be able to arrange with a community organization to have an interpreter available in person or by phone during patient consultations. Document these arrangements and whether there are delays or other service-related problems with respect to LEP patients.

Q Can a patient’s family member or friend be used as an interpreter?
A The OCR requires the provider to first inform the LEP patient of the right to receive free interpreter services and permits the use of family and friends only after such offer of assistance has been declined and documented. This is to protect the privacy of patients who might not want to reveal personal health information in the presence of family members or friends and to ensure that the interpreter is sufficiently proficient in both languages. Since inaccurate or incomplete interpretation of an ophthalmic problem could cause serious harm, do not rely exclusively upon a patient’s family member or friend to serve as an interpreter.

Q Does the OCR provide specific guidance on this matter?
A Given the diversity of patient populations and ophthalmic practices, problems and ambiguities are inevitable. OCR provides technical assistance to health care providers to ensure that LEP persons can access their services. OCR will help identify successful practices and strategies used by other providers as well as sources of federal reimbursement for translation services.

Q Who is responsible for paying for interpreter services?
A In certain instances, the physician may be forced to pay for interpreter services. The AMA has been joined by nearly 40 state and specialty medical societies (including the American Academy of Ophthalmology) in objecting to shifting this cost burden to the physician.

Q What if it is determined that my practice is not in compliance with federal guidelines?
A OCR will investigate whenever it receives a complaint or report that alleges possible noncompliance with Title VI. If noncompliance is found, OCR will send a letter of findings to the practice setting out the areas of noncompliance and the steps that must be taken to correct them. OCR must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, OCR must secure compliance through (a) termination of federal assistance after the practice has been given an administrative hearing, (b) referral to the Department of Justice for injunctive relief or other enforcement proceedings, or (c) any other means authorized by law.

For more information about Title VI guidelines, visit the HHS OCR web site at 

http://www.hhs.gov/ocr/civilrights/resources/specialtopics/lep/index.html

 http://www.cvrc.state.nm.us/NM%20Electronic%20Materials/LEP%20Guidance.pdf