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Interpreter Issues and Resources
AMA Office Guide to Communicating With Limited English
Proficient Patients - The AMA’s second edition of its Office
guide to communicating with limited English proficient patients offers detailed
information and resources that physicians and other health care professionals
can use to provide better care to patients with limited English proficiency (LEP).
The booklet explains how LEP can affect patient care and offers strategies to
address the language needs of patients in a culturally, linguistically, and an
ethically appropriate manner. It includes commonly asked questions surrounding
the issue of LEP, tips for working effectively with interpreters, and a chart to
explain when to use varying levels of interpretation resources.
Q: What are the legal
requirements for a physician practice to provide language interpretation
services for patients with limited English proficiency (LEP)?
A: The following is a summary of applicable federal and state laws.
Office of Civil Rights Guidance
Title VI of the Civil Rights Act of 1964 states that no person shall be
subjected to discrimination on the basis of race, color or national origin under
any program or activity that receives federal financial assistance. [42
U.S.C.A. § 2000d.]
In 2000,
Executive Order 13166 was issued, which instructed federal agencies to publish
guidance for recipients on how to ensure compliance with Title VI of the Civil
Rights Act.
In response
to the executive order and after a comment period, in 2003 the Department
of Health and Human Services issued “Guidance to
Federal Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient Persons”
to clarify the responsibilities of health care providers under Title VI.
The guidance is intended to assist recipients in
determining what
“reasonable steps to provide meaningful access to
Limited English Proficient (LEP) persons” are required to comply with Title VI
and existing regulations. “Recipients” include any private institution or
organization, or any public or private individual that:
1)
Operates, provides or engages in health, or social
services programs and activities, and
2) Receives federal financial assistance from the
Department of Health and Human Services directly or through another recipient,
which includes state Medicaid agencies. Providers who only participate in
Medicaid Part B are exempt.
In examining compliance on a
case-by-case basis, the Office of Civil Rights will examine four factors to
determine if reasonable steps are being taken to ensure meaningful access to LEP
patients:
1) The number or proportion of LEP persons expected to
be encountered;
2) The frequency with which LEP individuals will come
in contact with the provider;
3) The nature and importance of the service;
4) The resources available to the provider and the
costs.
Enforcement is premised on voluntary
compliance, but the Office of Civil Rights will investigate complaints and issue
findings discussing what changes need to be made to ensure compliance.
A challenge
to the enforceability of the guidance by physicians and other organizations in
California was dismissed in 2005 for a lack of standing, as the judge determined
that the plaintiffs had not suffered any injury and even if they did, the injury
would not be linked to the guidance, as the Department of Health and Human
Services would still have to enforce Title VI and its enacted regulations. [Colwell
v. Department of Health and Human Services, 2005 US Dist. LEXIS 6566, *14,
26.]
Vermont Patients’ Bill of Rights
(18 VSA 1852)
In a
hospital inpatient setting, “a patient who does not speak or understand English
has a right to an interpreter if the language barrier presents a continuing
problem to patient understanding of care and treatment.” Failure to comply with
any provision of the Patients’ Bill of Rights may constitute a basis for
disciplinary action against a physician by the Board of Medicine.
Vermont Public Accommodations
(9 VSA 4502)
The says
that “An owner or operator of a place of public accommodation or an agent or
employee of such owner or operator shall not, because of the race, creed, color,
national origin…of any person, refuse, withhold from or deny to that person any
of the accommodations, advantages, facilities and privileges of the place of
public accommodation.” Public accommodations include any facility in which
services are offered to the general public. Failure to comply may result in an
action for civil penalties either through the Vermont Human Rights Commission or
a private court action.
Q: What are the legal requirements
for a physician practice to provide language interpretation services for
patients who are deaf of hard of hearing?
A: The following is a summary of
applicable federal and state laws.
Americans with Disabilities Act
(42 USC 12131-12134)
The ADA
prohibits public accommodations from discriminating against people with
disabilities. This entails furnishing auxiliary aids and services when necessary
to ensure effective communication with individuals with hearing impairments,
including in certain situations, providing an interpreter who is able to
interpret sign language effectively, accurately, and impartially.
The ADA
provides an exception for services that would impose an undue burden or would
fundamentally alter your offered services. The fact that an interpreter’s charge
exceeds the fee for the visit is not alone considered an undue burden.
Private
individuals may bring lawsuits in which they can obtain court orders to stop
discrimination. Individuals may also file complaints with the attorney general,
who is authorized to bring lawsuits in cases of general public importance or
where a pattern or practice of discrimination is alleged. In these cases, the
attorney general may seek monetary damages and civil penalties. Civil penalties
may not exceed $55,000 for a first violation or $110,000 for any subsequent
violation.
Vermont Patients’ Bill of Rights
(18 VSA 1852)
In a
hospital inpatient setting, “a patient who is hearing impaired has a right to an
interpreter if the impairment presents a continuing problem to patient
understanding of care and treatment.” Failure to comply with any provision of
the Patients’ Bill of Rights may constitute a basis for disciplinary action
against a physician by the Board of Medicine.
Vermont Public Accommodations
(9 VSA 4502)
The law says
that, “A public accommodation shall provide an individual with a disability the
opportunity to participate in its services, facilities, privileges, advantages,
benefits and accommodations. It is discriminatory to offer an individual an
unequal opportunity or separate benefit; however it is permissible to provide a
separate benefit if that benefit is necessary to provide an individual or class
of individuals an opportunity that is as effective as that provided to others.”
Failure to comply may result in an action for civil penalties either through the
Vermont Human Rights Commission or a private court action.
Q: Do the interpretation
requirements affect the requirement to provide informed consent to patients?
A: The
Vermont Patients’ Bill of Rights provides that “the patient has the right to
receive from the patients’ physician information necessary to give informed
consent prior to the start of any procedure or treatment.”
Additionally, failing to obtain informed consent may be a factor in medical
malpractice litigation, although there are some exceptions. For the purposes of
medical malpractice actions, "lack of informed consent" is defined as a failure
to disclose to the patient reasonably foreseeable risks, benefits, and
alternatives to the proposed treatment, in a manner permitting the patient to
make a knowledgeable evaluation. In addition, patients are entitled to
reasonable answers to specific questions about foreseeable risks and benefits.
[12 V.S.A. §1909]
Using interpreters, translation services or
other communication aids and services may be necessary to ensure that patients
with limited English proficiency (LEP), deaf, or hard-of-hearing patients
receive appropriate information about the proposed treatment to enable them to
give informed consent to treatment.
Q: Is a written authorization required to disclose
health information to interpreters?
A: An
interpreter or bilingual employee is covered under the health care operations
exception for purposes of HIPAA, and the patient’s authorization to disclose
protected health information is not required
Providers
who utilize a private company for interpretation on an ongoing contractual basis
should ensure that their contract conforms to the HIPAA
Privacy Rule business associate agreement
requirements.
In other situations, with disclosures to family
members, friends, or other persons identified by an individual as involved in
his or her care, when the individual is present, the health care professional or
facility may obtain the individual’s agreement or reasonably infer, based on the
exercise of professional judgment, that the individual does not object to the
disclosure of protected health information to the interpreter.
Q: Is there a need for language interpretation services
in the Vermont population?
A: In 2000, the U.S. Census had roughly 34,000
people over the age of 5 in Vermont listed as speaking a language other than
English. Of that 34,000, 9,300 spoke English “less than very well,” including
3,880 households defined as “linguistically isolated” in which no member over 14
years old speaks only English, or speaks a non-English language and speaks
English "very well."
Chittenden
and Essex counties
had the highest concentration of limited English proficiency persons.
Q: Is there a need for
interpretation services for patients who are deaf or hard of hearing in Vermont?
A: According to the
Department of Disabilities, Aging and Independent Living, there are 625,935
people living in Vermont. Approximately 2,000 people are deaf and approximately
56,000 are hard of hearing.
Q: Where can I find interpreter services and what are
the rates?
A: Below is a list of service
providers, their phone numbers, web sites, and fee structures.
Organization: Language Line Services (LEP)
Phone:
1-877-866-3885
Web:
www.languageline.com
Fee
Structure: $3.50-$4.50 per minute, based on “membership interpretation” fees
Type
of Service: Over-the-phone.
Organization: Language Learning Enterprises (LEP)
Phone:
1-888-464-8533
Web:
www.lle-inc.com
Fee
Structure: $1.80 per minute
Type
of Service: Over-the-phone
Organization: Vermont Refugee Resettlement Program (LEP)
Phone:
1-802-654-1706
Fee
Structure: $70 per hour, 1-hour minimum, additional $20 outside business
hours, and $1 per mile outside travel area
Type
of Service: In-person interpretation
Organization: Language Services Associates (LEP)
Phone:
1-800-305-9573
Web:
www.lasweb.com
Fee
Structure: $75 per hour, 2-hour minimum, and $37.50 per hour of travel,
$0.37 per mile
Type
of Service: In-person interpretation
Sign
Language Specific
Organization: Vermont Interpreter Referral Service (Deaf and Hard of
Hearing)
Phone:
1-802-254-3920
Web:
www.virs.org
Fee
Structure: $30-$35 finder fee for each interpreter in addition to
interpreter fee
Type
of Service: In-person interpretation
Organization: Registry of Interpreters for the Deaf (Deaf and Hard of
Hearing)
Type of Service: Online
searchable national database of interpreters for the deaf. The database can be
searched by state and includes links to contact information for interpreters
from Vermont.
Web:
http://www.rid.org/
Fee
Structure: Not available – contact individual interpreters for information
about fees.
State
Agencies
Vermont Medicaid: Reimbursement for $15 per unit in 15-minute increments for
in-person interpretation.
Vermont Agency of Human Services: In-house contract for interpretation
services.
Q: How do the fees charged in Vermont compare with fees
charged in other places?
A: The fees for interpretation services in
Vermont generally seem to match the fees seen around the country. A sample of
the General Service Administration fee schedule, which lists contract prices of
services for government contactors, shows rates of $71.05 per hour with a
two-hour minimum and $80 per hour with a three-hour minimum for consecutive
in-person interpretation. A 2003 survey by the Medical Group Management
Association cites $72.50 per hour with a 2-hour minimum as an average fee for
in-person interpretation.
Q: Do insurers reimburse for interpreter services?
A: To our knowledge, only Medicaid
reimburses for interpreter services at this time. The reimbursement is $15 per
unit for 15-minute increments for in-person interpretation.
Q: Is there any way to bill for
the extra time spent with a patient in the office when a translator is
involved?
A: The only way to account for this extra time is to submit one of the
prolonged services codes (99354-99355), which requires that the face-to-face
time spent with the patient extend at least 30 minutes beyond the typical time
associated with the appropriate CPT services. Note that Medicare and most other
payers will not pay for the services of the translator even if they are willing
to pay for the extra visit time associated with using a translator.
Q: How do other states address the
issue of providing interpreters?
A: As of 2005, Vermont was one of 11 states providing reimbursement for
Medicaid visits, despite a 2000 CMS memo to all state Medicaid directors
alerting them of matching federal funds for interpreter reimbursement. Vermont,
as mentioned above, reimburses providers for all SCHIP and Medicaid in-person
interpretation costs at a rate of $15 per unit in 15-minute increments.
Maine reimburses Medicaid providers for fee-for-service visits and covers all
“reasonable costs” for interpretation services.
New Hampshire requires interpreters to enroll as Medicaid providers, and
reimburses interpreters who bill the state directly. The state reimburses $15
for the first hour, and $2.25 for each subsequent quarter hour, while
reimbursing $25 per hour for sign language interpreters. In FY 2004, the state
spent $9,017 on 157 Medicaid recipients for 605 encounters.
Washington providers who are not public entities call a regional broker, who has
contracted with the state, to schedule an interpreter. The state then pays the
broker an administrative fee, and interpreters or language agencies $32 per
hour. The state also has a comprehensive assessment program, including
certification or qualification, for interpreters.
Kansas offers Medicaid managed care providers access to a telephone interpreter
service, through its managed care enrollment center. The Spanish interpretation
service costs the state $1.10 per minute, and other languages cost $2.04 per
minute. In 2004, the state was averaging about $4,000 per month on these
services.
Note: Information on other states’ approaches is from various state Medicaid
websites and the “Medicaid/SCHIP Reimbursement Models for Language Services:
2005 Update,” National Health Law Program.
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