Interpreter Issues and Resources

Vermont physician practices are required under federal and state laws to provide interpreters for patients with limited English proficiency and for those who are deaf or hard of hearing. There are very limited exceptions, discussed below. Use of interpreters or translation services may be necessary to ensure that patients can give informed consent. There are several sources for interpreters that physicians can use, including phone-based interpreters, in-person interpreters and online translation services. Vermont’s Medicaid program does reimburse physicians for the cost of providing an interpreter to patients.
 
VMS has compiled a list of frequently asked questions about interpreters. Click on a subject below to go to that issue:
 
Patients with Limited English Proficiency (LEP) – Legal Requirements
Deaf or Hard of Hearing Patients – Legal Requirements
Informed Consent
HIPAA and Disclosure to Interpreters
The Need for Interpretation Services   
Interpreter Resources
Reimbursement Issues

Patients with Limited English Proficiency (LEP)  

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.

Civil Rights Act/Affordable Care Act
 
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 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. 
 
In May 2016, the US Department of Health and Human Services (HHS) issued a Final Rule implementing a prohibition on discrimination by health care services found in Section 1557 of the Affordable Care Act (ACA).  Section 1557 builds on long-standing Federal civil rights laws that have already applied to most health care practices, such as Title VI of the Civil Rights Act.  The requirements of the Section 1557 Final Rule and Title VI are consistent and should generally be reviewed together – though Section 1557 provides further detail in several areas.
 
The Section 1557 Final Rule applies to “every health program or activity, any part of which receives Federal financial assistance.”  HHS expects that this applies to almost all physician practices in the nation as Federal financial assistance includes, but is not limited to: state Medicaid payments, “meaningful use” payments, National Health Service Corp funding, NIH research funding and CMS gain-sharing payments.  Physician practices that exclusively receive Medicare Part B payments are not included, but practices should conduct a thorough review of their funding sources and consult an attorney before deciding they are exempt.
 
Under Title VI and Section 1557, practices must ensure that they take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served. 
 
There is no one-size-fits all solution for the type of interpretation (verbal) or translation (written) services that must be provided by the practice and HHS acknowledges that the services provided by a large facility may not be appropriate for a small practice. For verbal interpretation, practices can consider options including hiring bilingual staff, using in-person interpreters or contracting with phone or video interpretation services.   Written translation can range from translation of an entire document to translation of a short description of the document to an oral translation by an interpreter.   Practices should conduct a review to determine if specific “vital” documents or portions of documents should be translated into the language of any frequently-encountered LEP groups.
 
Language access services must be provided free of charge, be accurate and timely, and protect the privacy and independence of the patient; a patient cannot be required to provide his or her own interpreter.
 
Interpreters and translators must also be qualified.  Bilingual staff, interpreters and translators must all adhere to ethical principles, including confidentiality, demonstrate proficiency in the appropriate languages and be effective, accurate and impartial.  Adult family can only be used in emergencies involving an imminent threat to health or safety and when no other interpreter is available OR if the patients specifically requests the family member and it is appropriate under the circumstances.  In many circumstances family members are NOT competent to provide quality, accurate interpretation. Minor children can only be relied on if there is an imminent threat to safety or health.  Interpretation over video must be capable of providing high quality images.
 
In examining compliance on a case-by-case basis, the Office of Civil Rights will examine a number of factors to determine if reasonable steps are being taken to ensure meaningful access to LEP patients.  The factors may include: the length and complexity of a given communication; the prevalence of the language spoken by the patient; the frequency the provider encounters the language; whether the provider weighed the patient’s preferences; and the cost of language assistance services/resources available to the practice.  The primary factor OCR will consider is whether the practice has created a language access plan.  For more information on a language access plan, see the VMS Summary of Section 1557, here
 
Under Section 1557, practices also have procedural requirements regarding non-discrimination. Beginning October 16, 2016 practices need to post a notice of non-discrimination in English and shorter “taglines” in non-English languages regarding the availability of language assistance services (1) in their practice, (2) on the practice website and (3) in any significant publications or communications.  Practices employing 15 or more individuals also need to create a grievance procedure and name a compliance coordinator for Section 1557’s requirements, effective July 2016.  For more information, see the VMS Summary of Section 1557.
 
Enforcement by the Office of Civil Rights is carried out through compliance reviews, complaint investigations and providing technical assistance and guidance.  To help understand how to comply with the Title IV Guidance, HHS published a Summary, Fact Sheet and FAQs here.  For more information about Section 1557, see the OCR website here.

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.

Deaf or Hard of Hearing Patients

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)/Affordable Care Act 

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.
 
For a helpful summary of physician practice obligations under the ADA, see the National Association for the Deaf Questions and Answers for health care providers.
Section 1557 of the Affordable Care Act, and accompanying regulations, reiterate the requirement that physician practices ensure that communications with individuals with disabilities are as effective as communications with others. In addition, physician practices covered by the law must ensure that any online services available to patients are accessible to individuals with disabilities.  For more information, see the VMS Summary of Section 1557, here.

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.

Informed Consent

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. 

HIPAA and Disclosure to Interpreters

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 written authorization to disclose protected health information is not required.
 
Providers who utilize a private company for interpretation or translation 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. 
 
Authorization is also not required when using a TRS phone service for an individual who has a hearing impairment.
 
For more information, see the HHS FAQs on disclosing protected health information to an interpreter or when using a TRS service.

The Need for Interpretation Services

Q: Is there a need for language interpretation services in the Vermont population?  

A: According to US Census data released in October 2015, Vermont had roughly 31,000 people over the age of 5 in Vermont listed as speaking a language other than English and close to 9,000 who spoke English “less than very well.”  The top 15 language spoken “less than very well” are: French (1,806 speakers), Spanish (1,473), Vietnamese (752), Chinese/Mandarin (650), Nepali (570), Serbocroatian (Serbian language) (455), German (305), Cushite (Oromo language - African) (275), Arabic (168), Russian (168), Tagalog (131), Italian (124), Thai (123), Japanese (121) and Portuguese (120).  They are followed by Korean (114), Serbian (110) and Russian (103).

Q: Is there a need for interpretation services for patients who are deaf or hard of hearing in Vermont?

A: According to the 2014 American Community Survey, conducted by the US Census Bureau, of the approximately 620,000 people living in Vermont, 181 under the age of 5, 10,000 between 18-64 and 15,000 over the age of 65 have a hearing difficulty.   

Interpreter Resources

Q: Where can I find more information about working with interpreters?

A: There are a number of resources available for practices seeking more information about working with interpreters, including:

Q: Where can I find interpreter services?

A: Below is a non-exclusive list of service providers and contact information. Please note that VMS does not endorse any of these services and this information is subject to change.
 
Limited English Proficiency

Organization: Language Line Services
Phone: 1-877-866-3885
Web: www.languageline.com
Fee Structure: Per minute charges
Type of Service: Over-the-phone interpretation, online document translation
 
Organization: Cryacom Language Solutions
Phone: 1-800-481-3289
Web: http://www.cyracom.com/
Fee Structure: Per minute charges
Type of Service: Over-the-phone interpretation, online document translation  
 
Organization: Vermont Refugee Resettlement Program
Phone: 1-802-654-1706
Web: http://refugees.org/serving-the-uprooted/services/interpreting-services/
Fee Structure: Varies based on services provided
Type of Service: In-person interpretation, phone/audio, translation services
 
Sign Language Specific

 
Organization: Vermont Relay Service
Phone: 1-866-931-9028
Web: http://www.vermontrelay.com/
Fee Structure: The Vermont Telecommunications Relay Service is a free service for all Vermonters, connecting deaf, hard-of hearing, deaf-blind and speech-disabled individuals with users of regular telephones.
 
Organization: Vermont Interpreter Referral Service
Phone: 1-802-254-3920
Web: www.virs.org
Fee Structure: Finder fee for each interpreter in addition to negotiated interpreter fee
Type of Service: In-person interpretation
 
Organization: Vermont Division of Vocational Rehabilitation
Web: http://vocrehab.vermont.gov/programs/rcd/interpreters
Type of Service: List of Vermont Interpreters

Reimbursement Issues

Q: Can I charge patients for the cost of using an interpreter?

A: No, the patient cannot be held responsible for the additional cost of using an interpreter to access services.

Q: Do insurers reimburse for interpreter services?

A: To our knowledge, only Medicaid reimburses for interpreter services at this time.  A provider who pays for interpreter services for Vermont Medicaid members may bill procedure code T1013 for each 15 minutes of paid interpreter services provided, on site or via telephone. The rate on file for the billing code is $15 per 15-minute increment. This may include interpreter service outside of the actual healthcare provider encounter in order to fill out forms or review information/instructions. The provider may not bill Vermont Medicaid or the member for a missed appointment per federal policy.  Claims are submitted using the CMS 1500 claim form with HCPCS code T1013.
 
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 (99354-99357), 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. 
 
 
[Page updated July 2016]

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