Legal Risks with Non-English Patients Essay

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To eliminate healthcare barriers experienced by the growing number of LEP patients, it is imperative that physicians and office staff comprehend federal, state, and privatesector requirements regarding LEP patients. It is also important for physicians to assess the multicultural populations living within their practices’ geographic areas and to incorporate appropriate interpretation and translation services within their practices.6
Healthcare Barriers
There are many important and practical reasons for patients and physicians to communicate effectively and to understand each other. For example, physicians need to obtain accurate medical histories, and patients need to understand physician instructions and become an integral part of the patient-physician partnership. More often than not, LEP patients are hampered in these efforts because of language barriers. These barriers are likely to result in fewer visits to providers and delays in preventative services, fostering acquisition and exacerbation of chronic conditions and deterioration of acute symptoms leading to hospitalization.7-11
Unresolved linguistic and cultural barriers can contribute to misunderstandings among patients regarding diagnosis, treatment, and self-care options.12 Other implications of these barriers can include inappropriate use of medications,13 lack of informed consent for procedures,14 longer hospital stays,15 poor patient satisfaction,7,8,16-18 and poor comprehension by patients of follow-up care plans.19,20 Temporary or permanent confusion, fears, and concerns among the rapidly expanding LEP population are compounded by difficulties these individuals have in accessing healthcare resources and providers.21-24
Federal and State Regulations Legal Risks with Non-English Patients Essay
A number of federal and state regulations are designed to protect LEP patients from encountering healthcare barriers. All providers who receive federal funding must abide by Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.25 In 2000, President Bill Clinton issued Executive Order 13166, which reinforced the need for providers and hospitals that receive federal funding to render appropriate access and services to LEP patients.26 In addition, the Standards for Culturally and Linguistically Appropriate Services (CLAS)27 were established in 2001 by the Department of Health and Human Services’ (HSS) Office of Minority Health. These LEP-related standards include the following requirement:
Health care organizations [that receive federal funding] must offer and provide language assistance services, including bilingual staff and interpreter services, at no cost to each patient/consumer with limited English proficiency at all points of contact, in a timely manner during all hours of operation.

A major source of confusion for many physicians is whether this HHS guidance applies to them. To clarify, the HHS CLAS standards apply to any entity receiving funds from the HHS, including physicians who participate in Medicare Part A or federally funded clinical trials or who provide treatment to certain other patient categories.27 Physicians enrolled only in Medicare Part B and who do not otherwise receive federal funds are not subject to the HHS requirements.28  Legal Risks with Non-English Patients Essay
The CLAS standards also apply to patients needing services in American Sign Language and those covered by the Americans With Disabilities Act.27,29 Figure 1 shows a comprehensive list of the CLAS standards.
Individual states vary in their quantity and scope of laws related to caring for LEP patients. All states have antidiscrimination laws that at least broadly encompass Title VI, Executive Order 13166, and the CLAS standards.27 In New Jersey, mandatory cultural competency training, including content for treating LEP patients, is required for all physicians and podiatrists before relicensure.30-33 Curricular integration of cultural competency is required in all New Jersey medical schools.30-33 California30,34 and Washington State30,35 require varying degrees of cultural competency training or continued medical education regarding LEP patients before physician relicensure. Many other states currently have legislation in various stages of development involving integration of cultural competency and LEP proficiency training for healthcare providers.30,36
In addition to federal and state laws, the American Osteopathic Association,37 Accreditation Council for Graduate Medical Education,38 and American Board of Medical Specialties39 have all mandated the implementation of core competencies in medical training programs. These requirements include competencies in communication skills and professionalism, such as sensitivity to patient age, culture, disability, and sex, and recognition of cultural diversity among patient populations in served communities. The National Board of Osteopathic Medical Examiners has issued a report recommending the inclusion of core competencies in the Comprehensive Osteopathic Medical Licensing Examination (COMLEX-USA).40 The Joint Commission is currently developing accreditation requirements to advance effective communication and cultural competence within the medical environment, including reducing language barriers in patient care.Legal Risks with Non-English Patients Essay
These many efforts, however, have not been sufficient to resolve language barriers for LEP individuals. In particular, awareness of language law among providers has not been associated with use of professional interpreters by providers.42 This finding suggests that providers may still not be aware of their legal obligations to offer language access services to their LEP patients. It may also indicate that providers continue to use untrained interpreters, such as patients’ family members and friends. Although federal policy for the past 40 years has mandated that meaningful language access be provided to LEP patients, this requirement has resulted in less than favorable outcomes.42 There is much room for raising awareness of this issue, as well as for creating more rigorous guidelines and enforcement mechanisms.
To determine the extent of LEP patient needs, the HHS suggests that all physicians who receive federal funding conduct LEP assessments of their practices, focusing on the following factors43:
the number or proportion of LEP persons eligible to be served or likely to be encountered by the program, activity, or service provided by the [federal funding] recipient
the frequency with which LEP individuals come in contact with the recipient’s program, activity, or service
the nature and importance of the recipient’s program, activity, or service Legal Risks with Non-English Patients Essay
the resources available to the recipient and [the recipient’s] costs
Although no finite numbers or time frames are recommended in the HHS guidelines,43 the following is noted about these four factors and a physician’s obligation to provide services to LEP patients:
As clarified by the guidance, the extent of Title VI obligations will be evaluated based on a four-factor test including the nature or importance of the service. In this regard, the guidance points out that documents deemed “vital” to the access of LEP persons to programs and services may oftenhave to be translated. Whether or not a document (or the information it contains or solicits) is “vital” may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner.

The Case
A 56-year-old Spanish-speaking woman with a complicated medical history presented to the preoperative clinic for evaluation in advance of a scheduled elective total abdominal hysterectomy and bilateral oophorectomy. The electronic health record indicated that the patient required a Spanish interpreter to communicate with health care providers. A non–Spanish-speaking physician met the patient and discovered that no in-person interpreter had been booked in advance of the visit.Legal Risks with Non-English Patients Essay

The provider attempted to use the clinic’s phone interpreter services, but the phone reception in the exam room was poor and the interpreter and patient could not hear each other. The patient tried calling her husband to interpret, but he was unavailable. Eventually, a Spanish-speaking medical assistant was able to interpret for the visit. The provider learned that the patient was having symptoms concerning for unstable angina and determined that the patient would require additional cardiac testing before proceeding with the elective surgery. The visit had been booked for a 30-minute slot but took more than 75 minutes. The patient obtained the necessary cardiac follow-up and her surgery was rescheduled.

After the visit, the physician investigated the situation further and discovered that the interpreter phone line receiver was located at the opposite end of clinic, which likely explained the poor reception in the exam rooms. Additionally, the interpreter phone shared a line with the fax machine. Although the physician had previously been able to use her personal cellphone to access the interpreter services company, the practice had recently switched vendors and she did not have their access number. Furthermore, the clinic did not have a formal process in place designed to identify non–English-speaking patients in advance of their visits and to ensure that in-person interpreters were booked for those visits.Legal Risks with Non-English Patients Essay

The Commentary
Commentary by Leah S. Karliner, MD, MAS

Communicating across language barriers is a challenge for clinicians and health systems. In the United States, approximately 20% of the adult population speaks a language other than English at home; of this group, almost half report speaking English less than very well and are considered to have limited English proficiency (LEP).(1) For those with LEP, Spanish and Chinese are the most common preferred languages, but hundreds of additional languages are in use throughout the US. In health care, bridging the language barrier is necessary to avoid clinical errors, provide patient-centered care, and comply with legal and regulatory mandates.

Legal and Regulatory Requirements
Federal law requires linguistic services for patients with LEP. Title VI of the US Civil Rights Act states that people cannot be discriminated against as a result of their national origin, race, or color, which has been extrapolated to include primary language by the US Office for Civil Rights and Department of Health and Human Services. In addition, health care organizations that receive federal funds—most do in the form of public insurance payments (Medicaid or Medicare)—must provide services in a language that a patient with LEP can understand.(2) The Joint Commission, the main hospital accreditation body in the US, requires that hospitals collect and record patients’ preferred languages for discussing health care and have included in their standards the use of qualified medical interpreters for patients whose preferred language is not English.(3)Legal Risks with Non-English Patients Essay

Professional Interpretation
Poor-quality communication between patients with LEP and clinicians leads to decreased medication adherence (4,5), diminished patient satisfaction with care (6,7), less patient-centered care (8), and negative clinical experiences.(9) Poor communication contributes to errors and health disparities for this vulnerable population. Professional interpreters improve communication, promote appropriate use of resources, and significantly increase patient and clinician satisfaction.(10) The use of professional interpreters has been shown to result in fewer errors in communication (11), reduce disparities in utilization of services (12), and improve clinical outcomes.(10) Language interpretation requires a specific set of skills, including bilingual fluency and the ability to switch fluidly between two languages while interpreting the meaning and tone of what has been said from one language to another.(13) The challenges inherent to this task contribute to the potential for errors in interpretation. Multiple studies have demonstrated that the error rate for professional interpreters is considerably lower than that of ad hoc interpreters (untrained family, friends, or staff), and when errors are made, they are less likely to be clinically significant.(11,14-16) Clinicians can also help reduce the chance of errors by learning and practicing the skills needed for successful patient encounters when using professional medical interpreters (Table).Legal Risks with Non-English Patients Essay

Interpretation Modality
The best modality for accessing professional interpreter services depends in part on the needs and resources of a particular health system or practice. In-person professional interpretation is the most studied interpretation modality and has been demonstrated to improve satisfaction, processes, and outcomes of care.(10) It allows the interpreter to incorporate visual cues to enhance communication. In fact, professional interpreters report better understanding of patients’ social and cultural backgrounds and greater ease facilitating rapport when interpreting in-person.(17) However, in-person interpretation has drawbacks, such as limitations on the number of languages a health system can staff efficiently and time constraints on staff availability (particularly with fluctuations in demand and need to travel from one location to another between clinical encounters), which can hinder both access and efficiency. As a result, while solely relying on in-person interpreters will provide high-quality communication for patients who receive these services, it may actually reduce access for a large proportion of patients requiring services in the health system. Thus, mixed use of multiple modalities may be a more ideal strategy, particularly for larger health systems.Legal Risks with Non-English Patients Essay

Remote interpretation (telephonic or videoconferencing) increases access and efficiency by allowing for economy of scale, whether utilizing a health system’s own staff in a call-center type environment or with staff from a contracted service provider. Both approaches reduce travel time between locations, downtime for professional interpreters waiting for physicians to see a patient, and wait time for patients.(18) Remote interpretation also allows for on-demand access without scheduling, a particularly important component of a language access service program for emergency and hospital settings.

In addition to using a ubiquitous, familiar technology, telephonic interpretation greatly increases professional interpreter use, particularly in environments that previously had limited access to professional interpreters.(19,20) Patients also prefer telephonic interpreting over ad hoc interpretation.(21) However, the data on satisfaction with communication comparing telephonic and in-person interpretation are mixed, and greater satisfaction with one over the other may be related to other factors such as wait times and ease of access as well as professionalism of the interpreter.(22-24) Interpreters themselves report telephonic interpretation to be equally good as in-person interpretation for simple information exchange, but less satisfactory for interpersonal aspects of communication. In clinical encounters with extensive psychosocial or educational content, interpretation via videoconferencing is considered better than over the telephone.(17)Legal Risks with Non-English Patients Essay

NOW

Videoconferencing, also known as video medical interpretation (VMI) or video remote interpretation (VRI), has the advantage over telephonic interpretation of preserving visual cues, and it provides the ability to conduct visually based teaching, such as for wound care or use of injectable medications. Both clinicians and patients report the quality of VMI/VRI as equal to in-person interpretation, although in-person may still be superior for understanding cultural nuances.(25-27) Interpretation error rates for VMI/VRI are significantly lower than for ad hoc interpretation and appear equal to rates for in-person interpretation.(15)

Technology
As videoconferencing technology has evolved to encompass sharper visuals and high-quality audio on less bulky equipment, the uptake of this technology for professional interpretation has increased. The development of VMI/VRI for shared public sector networks, along with the entrance of private service providers into this market, has begun both to expand the languages available and reduce the cost of videoconferencing interpretation. However, health systems still need to invest in high-quality equipment and should not rely on physicians using personal cellphones, for example, to attain the expected good outcomes from VMI/VRI use and to maintain privacy of protected health information.Legal Risks with Non-English Patients Essay

Internet-based applications for smartphones and tablets continue to emerge in this space but remain remarkably understudied. For example, unidirectional mobile applications intended for rapid information gathering and simple communication have not been studied and require cautious use. Because the very nature of communication is bidirectional and much may be missed or misconstrued when clinicians are the only ones able to express themselves in an encounter, use of this type of application should currently be confined to emergency situations when no other options are available, or for brief use while awaiting a professional interpreter. Similarly, online translation tools, though promising, also require caution due to potential errors that may leave clinicians and health systems open to liability if the translated message delivered to the patient does not match the intended message.(28) However, there remains a need for technological advances to deliver reliably accurate translations that interface with electronic health records in order to provide visit and discharge summaries and instructions to patients in their preferred language.Legal Risks with Non-English Patients Essay

Back to the Case
Reflecting on this case of the Spanish-speaking woman presenting for preoperative evaluation described above, there were significant opportunities to improve the care provided. First, while the health system seemed to provide access to both in-person or telephonic professional interpretation, neither form of interpretation was accessible to the physician at the time of this patient’s visit. The physician then tried to reach out to the patient’s husband who was not available and ultimately worked with a staff person who was not trained to interpret professionally. This use of ad hoc interpreters is not an adequate approach for clinical communication and is prone to error. In a more acute situation, using a staff member to interpret may be adequate for assessing urgent issues until a professional interpreter arrives.

Thankfully, in this case, the appropriate clinical assessment was made, and the patient’s surgery was rescheduled due to concerning cardiac symptoms. However, the patient’s symptoms could easily have been missed, and the lack of professional interpreter services could have contributed to an adverse outcome. In addition, the encounter with this patient took the provider a very long time. Even when interpreter services are easily available, it takes longer for a provider to communicate the clinical information via an interpreter to an LEP patient than it does to an English-speaking patient. Anticipating the need for extra time and scheduling longer visits for LEP patients can help facilitate clear communication necessary to care for these patients in a safe and patient-centered manner.Legal Risks with Non-English Patients Essay

A major source of confusion for many physicians is whether this HHS guidance applies to them. To clarify, the HHS CLAS standards apply to any entity receiving funds from the HHS, including physicians who participate in Medicare Part A or federally funded clinical trials or who provide treatment to certain other patient categories.27 Physicians enrolled only in Medicare Part B and who do not otherwise receive federal funds are not subject to the HHS requirements.28
The CLAS standards also apply to patients needing services in American Sign Language and those covered by the Americans With Disabilities Act.27,29 Figure 1 shows a comprehensive list of the CLAS standards.
Individual states vary in their quantity and scope of laws related to caring for LEP patients. All states have antidiscrimination laws that at least broadly encompass Title VI, Executive Order 13166, and the CLAS standards.27 In New Jersey, mandatory cultural competency training, including content for treating LEP patients, is required for all physicians and podiatrists before relicensure.30-33 Curricular integration of cultural competency is required in all New Jersey medical schools.30-33 California30,34 and Washington State30,35 require varying degrees of cultural competency training or continued medical education regarding LEP patients before physician relicensure. Many other states currently have legislation in various stages of development involving integration of cultural competency and LEP proficiency training for healthcare Legal Risks with Non-English Patients Essay providers.30,36
In addition to federal and state laws, the American Osteopathic Association,37 Accreditation Council for Graduate Medical Education,38 and American Board of Medical Specialties39 have all mandated the implementation of core competencies in medical training programs. These requirements include competencies in communication skills and professionalism, such as sensitivity to patient age, culture, disability, and sex, and recognition of cultural diversity among patient populations in served communities. The National Board of Osteopathic Medical Examiners has issued a report recommending the inclusion of core competencies in the Comprehensive Osteopathic Medical Licensing Examination (COMLEX-USA).40 The Joint Commission is currently developing accreditation requirements to advance effective communication and cultural competence within the medical environment, including reducing language barriers in patient care.41
These many efforts, however, have not been sufficient to resolve language barriers for LEP individuals. In particular, awareness of language law among providers has not been associated with use of professional interpreters by providers.42 This finding suggests that providers may still not be aware of their legal obligations to offer language access services to their LEP patients. It may also indicate that providers continue to use untrained interpreters, such as patients’ family members and friends. Although federal policy for the past 40 years has mandated that meaningful language access be provided to LEP patients, this requirement has resulted in less than favorable outcomes.42 There is much room for raising awareness of this issue, as well as for creating more rigorous guidelines and enforcement mechanisms. Legal Risks with Non-English Patients Essay
To determine the extent of LEP patient needs, the HHS suggests that all physicians who receive federal funding conduct LEP assessments of their practices, focusing on the following factors43:
the number or proportion of LEP persons eligible to be served or likely to be encountered by the program, activity, or service provided by the [federal funding] recipient
the frequency with which LEP individuals come in contact with the recipient’s program, activity, or service
the nature and importance of the recipient’s program, activity, or service
the resources available to the recipient and [the recipient’s] costs

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. Related: Non-English speaking patients: Are you required to hire an interpretor? 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:Legal Risks with Non-English Patients Essay
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.Legal Risks with Non-English Patients Essay  Related: Complying with disability rules for hearing-impaired patients 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. Legal Risks with Non-English Patients Essay

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