SEVoIume 26, No.1Jefferson County Medical Society Januay/February 2009

Healthcare for Non-

English Speakers -

Interpretinge

Federal Rules

fty. F/an Quarle5, Esq.,

HalIhSoh Co77,OralionMy mother has deve/oped a nagging cough. She doesnt

Speak much Eng/ish.u/de doctor be ab/e to see her

this week?

Physicians, offices may receive such caIIs frequent-

1y Private practitioners who speak only English

might wonder if they have a Iegai obIigation to pro-

Vide specia=anguage services for those patients.

Not a= physicians are required to provide language

Services" The answer for each physician depends

On: (1 ) whether the physician receives federai finan-

Cial assistance other than through Medicare Part

B, and (2 the resuIts of a fourstep anaIysis issued

by the Department of Heaith and Human Services

(HHS).

Federal requjrements for assisting peopIe with

Limited English Proficiency (LEP) come from a

COmbination of Title VI of the CiviI Rights of 1964,

Department of HeaIth and Human Services (HHS)

lnsjdeNew Members

COming Evens

Page 4

Page 7

2009 Board of Directors Page 5

MASAb SDisthct Caucus Page 5

reguiations and Executive Oer 13166, For any

PrOgram Or aCtivity receiving federai financiaI assis-

tance, discrimination on the basis of race, CO!or or

national origin is prohibited. Tbward that end, reCip-

ients of federal financial assistance (Other than phy-

Sicians who only receive Medicare Part B) must take

reasonable steps to ensure that LEP persons have

meaningful access to such programs and activities

LEP services must be provided at no charge to the

Patient, but no federaI agencies provide funding.

Who Must ProvideEP Services?

Any physician who receives federal financiaI assis-

tance (defined beIow) is considered a ``recipient

Of federaI assistance" Physicians who only receive

Medicare Part B payments are not considered re-

Cipients,and are not subject to the EP ruIes. The

term recipientshould not be confused with the

Patient, Who is considered the uItimate benefi-

Ciary. Physicians, Or reCipients, ShouId appIy HHS

guideIines to determine what, if any, LEP services

are necessary under their pacuiar cicumstances,

What is Federai Financial Assistance?

Federai financial assistance incIudes, but is not Iim-

ited to: (1) grants and Ioans of federaI funds; (2) the

grant or donation of federal property and interests in

ProPey; and 3) any federai agreement, arrange-

ment or other contract which has as one of its

PurPOSeS the provision of assistance, Such as

Aid to FamiIies with Dependent Children. Fed-

eral financiaI assistance does not include such

assistance received by way of insurance or

guaranty In fact, HHS guidance

Continued Onge 2

ntinuedm

SPeCifically states that recipients of HHS assistance do

not include providers who only receive Medicare Part B

PaymentS, Physicians shouid note that Medicare PartA qualifies as federaI financial assistance. Therefore, a

Physicians practice group that owns an Ambuiatory Su

gicai Center (Which bilis the Part A facty fee) would be

Subjec=o these federal prohibitions against nationai ori-

gin discrimination.

Who AreEP Persons and What Are EP Services?

LEP persons do not speak English as their primary lan-

guage. They have only a limited ability to read, Write,

SPeak or understand Engiish. LEP services can be either

OraI (interpretation) or wren (transIation). OraI interpre-

tation can include contracting with on-Site pofessional

interpreters, hiring bnguai staff, Or uSing commercially

availabIe telephone transiation services. Wren transla-

tion can invoIve an entire document or a shorter descrip-

tion For HHS, the buzz word for determining the extent

Of a requisite service is meaningful. The interpretation

Or tranSlation must eectively communicate the sub-

Stance Of an oral o wrien message,

HHSFouFactor AnaIysis

in 2003, HHS issued guidance entitled, Guidance to

Federai FinanciaI Assistance Pecipients Regarding Titie

VI Prohibition Against NationaI Origin Discrimination Af-

fecting Limited Engiish Proficient Persons",, This guid-

ance contains the following four factors for physicians

receiving federaIanciaI assistance to consider in as-

SeSSing whether they must provide LEP services:

1. the number or proportion of EP persons eligibIe

to be served or likeIy to be encountered in the

Physician s practice

2. the frequency with which LEP individuals come in

contact with the physicians pracice

3. the nature and importance of the services provided

to peopies Iives

4. the resources avaiabie to the physician and costs

HHS has clarified that a baIance should be struck to

ensure LEP individuaIsmeaningfuI access to federaly

funded services while not imposing undue burdens on

SmaIl businesses, including physician practices. Thus,

if the physician is required to provide EP services, the

COrreCt mix or extent of the services should be based

On What is both necessary and reasonable in light of the

foufactor analysis. For example, a Physicians practice

Which encounters one LEP patient per month on a walk-

in basis may want to use a telephone intepreter service

instead of hiring bilingual staOr; if an LEP patient is

Seeking a routine medicai examination, a Physician could

ask the patient to scheduIe his or her appointment at a

time when an appropriate interpreter is avaiIable.

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May a Family Member or Friend Act as an lnterpreter?

When a physician detemines an interpreter is needed,

the physician must inform the LEP patient that he or she

has the option of eithe: (1) having the physician provide

an interpreter free-OCharge, Or (2) choosing his/her own

interpreter A physician camot require the LEP patient to

use a famiIy member or friend, and shouid respect the

LEP patients desire to use an interpreter of his or her

OWn Choosing (Which may be a professiona=ntepreter

and not a family member or fiend).

A physician should always consider the issues of compe-

tence and appropriateness in the use of famiiy members

and friends, aS Weii as any potential confiicts of interest

and confidentiality issues. In some cases, famiiy mem-

bers (especiaIly minor cdren) or fiends may not be

COmPetent tO PrOVide accurate interpretation. If a physi-

Cian later determines that a famiIy member orfriend is not

COmPetent Or aPPrOPriate, the physician should provide

COmPetent interpreter services in place of, Or if appropri-

ate, aS a SuPPIemen=o, the LEP patients interpreter: Of

COurSef the physician provides an interpreter service,

Whether in-PerSOn Or teIephonic, the physician shouId

ensure that the interpreters are competen=o interpretmedical terms.

Wrien Materials

Aer appiying the four-factor test, a Physician may dete

mine that to compIy with these federal requirements, his

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Or her practice should provide transiation of vitai docu

ments into the language(S) of frequentiy-encOuntered

LEP groups`Vitaldocuments wvary from practice

to practice, depending on the information and services

POVided. However examples of vitaI documents couId

incIude consent forms, HRA discIosures and notices

advisingEP persons of free language assistance.

Enforcement

HHS relies Iargely on voluntary compliance with the LEP

ruIes But, the agency winvestigate compIaints. Non-

COmPIiance wili be initially addressed through an informai

PrOCeSS lf the noncompliance is not resoived voIuntaily

HHS may uimateIy terminate fedeal assistance, but

OnIy aer the physician has been given an opportunity

for an administrative hearing, HHS couId also refer the

matter to the Department of Justice for injunctive re=ef or

Other enforcement proceedings,

Conclusion

SmaII practitioners have considerabie fiexiby in deter

mining exactiy how they wulfheir obIigations, if any;

to ensure thatEP persons have meaningfui access to

heahcare" HHSOCe Of Civil Rights (``OCR,,) can pro-

Vide additional assistance with the analysis. OCR,s con-

tact infomation is on HHSwebsite at

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