THE LEGAL ADVISOR
New Guidance: Patients with
Limited English Proficiency
Many lawsuits and Massachusetts
Board of Registration in Medicine (Board) complaints arise out of
miscommunications or misunderstandings with patients and their families.
Policies that facilitate communication are therefore extremely effective
risk management tools. When patients have a limited ability to speak,
understand, read, or write English, their "Limited English Proficiency"
(LEP) can hamper communication with health care providers and impair
health care delivery There are federal laws that require physicians in
certain settings to provide translation and other services for languages
commonly encountered in their practice. The Office for Civil Rights
(OCR), part of the Department of Health and Human Services, is
responsible for administering these federal laws.
Title VI of the Civil Rights Act of
1964 (Title VI) makes it a violation of the law for any facility that
receives public health service funding, federal grants, or funding for
most teaching programs to discriminate on the basis of national origin -
including on the basis of English proficiency. Additionally, any
hospital receiving Medicare reimbursement for inpatient services is
subject to Title VI. If even a single program within a facility receives
federal financial assistance, then the entire facility and each provider
working therein is subject to this law. Until recently, however, it has
been unclear exactly what types of measures a facility or physician may
be expected to take to assist LEPs. The OCR has issued new guidance in
this area.
Providers are expected to take
"reasonable steps" to ensure access for LEPs. When
assessing exactly what steps should be taken, the OCR asks facilities
and physicians to apply a four-factor balancing test in assessing
compliance needs:
1) NUMBER/PROPORTION OF LEPS TO BE
SERVED OR ENCOUNTERED
This factor should be assessed with
reference to the community or geographical area in which the provider or
facility is located, or from which the bulk of the patient population is
drawn. Data used in assessing the number of LEPs likely to be
encountered includes recent census material, data from local schools,
and the prior experience of the provider in that location.
2) FREQUENCY OF CONTACTS OR
ENCOUNTERS
The provider should assess the
frequency with which contacts from various LEP populations may be
expected. Steps that are reasonable in a practice that serves a large
number of LEPs quite frequently may not be reasonable for a practice
that rarely sees LEPs at all. The OCR suggests that "the more
frequent the contact with a particular language group, the more likely
that... services are needed."
Therefore, a provider in a service
area with a large number of Spanish speakers might be expected to take
significant steps to facilitate access in Spanish. However, that same
provider would not be held to the same standard for providing access on
a one-time basis to a brand new patient who happens to speak Khmer.
However, the four-factor balancing test should be applied whenever an
LEP presents for services. An adequate compliance plan may be as simple
as being prepared to use a commercial telephone-based translation
service.
3) NATURE OF SERVICE PROVIDED
Obviously, access to health care is
of great importance. However, the OCR realizes that not all health care
needs rise to the same level of complexity or urgency. A provider might
be expected to have translation services for LEPs immediately available
for services such as informed consent for emergency surgery. However,
one might be able to have translation services available with
"reasonable delay" when obtaining informed consent for wholly elective
surgery, where a delay would have no impact on the patient's health or
well-being.
4) RESOURCES AVAILABLE AND
COSTS
As noted above, providers are
expected to take "reasonable" steps to facilitate access by LEPs.
However, what is "reasonable" for a large clinic or a multispecialty
group practice of 70 physicians may be very different from what is
reasonable for a smaller practice. However, the OCR notes that available
possibilities - such as sharing language materials with other smaller
providers in the area, standardizing preprinted documents, and having
telephone translation available from a commercial service - can minimize
the impact of cost. Providers are expected to inform LEPs of their right
to interpretive services and are encouraged to carefully explore
cost-efficient means of facilitating access. Hiring bilingual staff,
staff interpreters, and the use of community volunteers may all be
possibilities for facilitating access.
CONCLUSION
Providers covered by Title VI are
expected to identify LEPs in need of assistance, provide language
assistance measures and train staff to interface with LEPs, provide
notice of language services to LEPs, and monitor and update their
compliance plan on a regular basis. An overview of this obligation and
detailed compliance guidance is available directly from the OCR at www.dhhs.gov/ocr/lep.
Additionally, policies that serve to facilitate communication are strong
risk management tools that decrease the potential for many lawsuits and
Board complaints.
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