Patient language barriers: Why physicians are responsible

Hospitals, physicians and other healthcare providers receiving financial assistance from the U.S. Department of Health and Human Services (HHS) must be mindful of their obligation not to discriminate against patients having a limited ability to communicate in English. That’s why your practice needs to develop protocols and procedures to find what works best.

Language barriers may undermine a patient’s “meaningful access” to federally funded healthcare services, because these barriers may prevent patients from understanding medical treatment and advice received from providers. Therefore, HHS mandates that providers take reasonable steps to overcome language barriers and ensure that Limited English Proficient (LEP) patients have timely and meaningful access to healthcare services.

The HHS Office for Civil Rights (OCR) is responsible for enforcing this mandate. A patient who feels that a provider has discriminated by denying access to language services may file a civil rights complaint with OCR, which has the authority to investigate complaints and to conduct “compliance reviews” to determine if providers’ policies, procedures and actions are consistent with the law.

Providers should arrange for oral and/or written language assistance services to communicate effectively with LEP patients concerning the delivery of healthcare services. HHS allows a provider some flexibility in determining the appropriate mix of language assistance services to facilitate communications depending upon:

the percentage of LEP individuals served

the frequency of services provided to LEP individuals

whether the services provided are important or emergent and

the resources available to the provider.

However, while a provider has a range of choices regarding which language assistance services are appropriate, the services the provider chooses must actually work to ensure effective communication. Below are best practices.

Language preferences

Ask the patient about his or her primary oral language and preferred written language. A provider can even use language identification cards that help the patient inform staff of language needs (i.e. “I speak Spanish.”)

Don’t assume understanding

Determine if the patient requires an interpreter. Note that it is important for providers not to assume that a multilingual patient understands them. Though it is not required by law, as a best practice a provider may check for patients’ understanding by requesting him or her to repeat back both treatment and discharge instructions in the patient’s own words.

Inform patients about their rights

Inform the patient of his or her right to a competent interpreter free of charge. Providers may provide notice regarding how to access language assistance services by posting signs, translated into the most common languages encountered, in intake areas. The Social Security Administration provides such notices at: www.ssa.gov/multilanguage/langlist1.htm.

NEXT: Use qualified interpreters

Use qualified interpreters

Use a qualified interpreter during patient medical exams to obtain a patient’s history and informed consent, and when giving treatment or hospital discharge instructions.

According to federal rules, a qualified interpreter is one who can interpret effectively, accurately, and impartially, using any necessary specialized vocabulary. All interpreters must adhere to their roles as interpreters and maintain confidentiality and impartiality throughout exams. Be sure to research community agencies that provide interpretation services.

OK to rely on bilingual staff?

While it may be appropriate to rely on bilingual staff in certain situations, be aware that if the information is highly technical, the use of bilingual staff is risky unless the staff member has a strong command of healthcare vocabulary and terms across languages.

Be wary of using family members as interpreters, because often they are not skilled in interpreting medical terminology and may have interests that conflict with the best interests of the patient. Moreover, using family members and friends as interpreters can lead to problems with confidentiality.

Determine when video interpreting is appropriate

Though face-to-face interpreters are generally preferred, HHS is aware that telephonic or video interpreting may be necessary, especially for small providers. When using telephonic or video interpreting, consider the nature and quality of the technology used (passing a headset back and forth is not ideal, for example), as well as the type of information being relayed. Technical information may require more explanation.

Don’t forget written documents

Provide translated written documents in the patient’s preferred written language. Vital documents must be translated; a document is considered vital depending on the importance of the information. Examples are consent and complaint forms and intake forms with the potential for important consequences.

The culture factor

Be aware that language and culture are not identical. Providers and interpreters should be aware that culture impacts not only communication, but also health-related knowledge and behavior.

Never refuse

Above all, providers never should refuse to provide language access services, charge LEP patients for language access services, or delay important or emergency

Marianne Monroy, JD, is a partner, and Colleen Hoeffling, JD, (not pictured) is an associate, at Garfunkel Wild, P.C., in Great Neck, New York. Send your legal questions to medec@advanstar.com.