Federal Language Access Requirements Raise Financial Concerns for Some Practices.
Law Feature — December 2016
Tex Med. 2012;112(12):31-38.
By Joey Berlin
Family physician Luis Benavides, MD, is part of a seven-physician group in Laredo and treats about 3,000 patients annually. About half of them are Spanish speakers, which is no problem for him because he and the rest of his office staff speak Spanish.
But he also has patients who speak Chinese, Vietnamese, and Korean. With some of those patients, challenges in communication can arise. While many of them speak English, Dr. Benavides says, the ones who do will sometimes bring in relatives for medical visits. Some of those relatives lived overseas and “speak absolutely no English,” he says. In those cases, the English-speaking family member will act as an interpreter.
But in cases when there’s no interpreter readily available, Dr. Benavides and other physicians may have to contract with a medical interpreter service. And for smaller businesses like his, those professionals don’t come cheap.
“Sometimes, in the past when I’ve tried to get some, they have been more than the office visit [payment] that I get for taking care of the patient,” said Dr. Benavides, a member of the Texas Medical Association’s Council on Health Care Quality.
That concern takes on new significance now that U.S. Department of Health and Human Services Office for Civil Rights (OCR) rules require physicians to offer “qualified” interpreters and translators to patients with limited English proficiency (LEP) when doing so is necessary. The rule implements the nondiscrimination section of the Affordable Care Act.
Austin health care attorney Mike Sharp says the OCR rule is “very much a question of practicality [and] feasibility.”
“It sounds great; it’s a great idea. We, of course, want everybody to have an understanding, and we want the doctor to have an understanding,” he said. “Doctors have struggled with this issue forever. It’s a great goal, but I don’t know how it can be implemented without the doctors having additional subsidization of cost.”
The Key Requirements
LEP patients are those whose primary language is not English and who have limited ability to speak, read, write, or understand English. Houston emergency physician Arlo Weltge, MD, vice speaker of the TMA House of Delegates, says OCR’s new regulations won’t force a major shift for large hospital systems, which generally have a system already in place to handle interpretation and other services for LEP patients. Small and independent medical practices, though, will need to consider how to handle the new rules, he says.
The OCR rule requires physicians to take “reasonable steps” to provide meaningful access to the LEP patient population. As TMA noted in a white paper it produced to help physicians navigate the new requirements, large hospital systems that serve a high LEP population will have different requirements to satisfy the rule than smaller shops that don’t have high LEP patient volume. (See “Sample Language Help From TMA.”)
“My sense is as I read these, compared to some other actions by the federal government, these don’t necessarily appear to be incredibly onerous or out of bounds, like sometimes they can be,” Dr. Weltge said. “But I think specifically, the most vulnerable population of physicians to these regulations … will be the smaller, physician-owned practices. [They] need to thoughtfully adopt not only a written policy, but reconsider how they’re going to provide these services.”
The new rule applies to any health program that receives any financial assistance from the federal government. The rule, OCR says, would “likely cover almost all licensed physicians” because most participate in at least one health program that receives such funding. However, physicians who solely receive Medicare Part B payments aren’t subject to the rule.
Physicians must provide language assistance services free of charge. Among the key provisions: When an oral interpreter is a step to provide meaningful access, the practice must provide a “qualified interpreter.” The same goes for translation of written content; the practice must use a “qualified translator” in that situation. Qualified interpreters or translators must:
Qualified interpreter or qualified translator status does not require a certification, per the final rule. TMA’s white paper explains OCR did not want to “unduly narrow the pool of qualified interpreters” by requiring certification, as becoming qualified for the purpose of its rule doesn’t require certification.
Practices may not:
Though federal guidance in the past has suggested practices adopt a written language access plan, the final rule doesn’t require such a plan. However, whether a practice has a plan will be a consideration in determining the practice’s LEP compliance if OCR is evaluating the practice.
OCR lists elements that might be found in an effective language access plan, including:
Also, the rule requires a practice to post a notice that includes material both related and unrelated to LEP services. Among the notice’s requirements are a nondiscrimination notification; a statement that the practice provides language assistance services when necessary, free of charge and in a timely manner, including translated documents and oral interpretation; and an explanation of how to obtain those services.
Practices also must post taglines for at least the top 15 languages LEP residents speak in that state. The taglines must indicate the availability of language services free of charge, with contact information for obtaining the services.
TMA’s white paper lists the top 15 most spoken languages by people with LEP in Texas, according to 2014 U.S. Census Bureau data. Spanish ranks at the top with nearly 3 million LEP speakers, well ahead of the second-most-spoken language, Vietnamese, which has more than 115,000 speakers. Further down the list are Chinese, Korean, Arabic, and some lesser-known languages such as Urdu, Tagalog, and Gujarati. (See “Most Common Languages of Texas’ LEP Population.”)
TMA has provided translated taglines for Texas’ top 15, along with templates for required notices, at online (login required).
Also, OCR is providing a sample tagline and translations in a number of different languages.
The rule also requires practices with 15 or more employees to adopt a grievance procedure and designate one employee as a compliance coordinator.
The LEP Challenge
The language assistance resources at Texas Children’s Hospital in Houston are an illustration of how large hospital systems won’t have as much trouble satisfying their LEP obligations. Valerie Mayer, an interpreter at the pediatric neurology clinic at Texas Children’s, says the hospital has on-site interpreters who speak Spanish and Arabic assigned to every department. It uses a specific contractor for Vietnamese language services, and it uses another contractor to provide language access for more than 250 languages.
With the help of the contractor, the hospital augments its on-site interpreters with video remote interpretation, over-the-phone interpretation, and language access services for the hearing-impaired.
Ms. Mayer says the requirements of a medical interpreter go beyond simply being bilingual. She says interpreters need to have an understanding of medical ethics and standards of practice, as well as knowledge of the Civil Rights Act and the nondiscrimination section of the ACA.
But even practices and hospitals with the resources to provide interpreters for dozens of languages encounter challenges in communicating adequately with LEP patients. In the large, urban emergency departments he staffs, Dr. Weltge has had instances of difficulty in trying to identify the language a patient was speaking, “particularly if the individual comes in altered or confused or otherwise impaired, whether it’s from substance [use] or whether it’s from, for example, infections.”
“As a general rule, my experience is the phone interpretive services are actually fairly good at sorting that out and are fairly helpful. And usually, I find that we’ll have some clues about the individual’s background,” he said. “But certainly, it comes up periodically where we not only don’t have any identification, we don’t have any clue what part of the world they come from and certainly don’t understand what they’re saying.”
Jaideep Mehta, MD, an assistant professor of anesthesiology at Houston’s McGovern Medical School and chair of TMA’s Committee on Patient-Physician Advocacy, says interpreters for some languages — such as certain Chinese dialects — are sometimes difficult to find.
“Spanish is pretty well-covered. A good number of the European dialects are covered. But it really depends,” he said. “What you frequently find is it’s the lesser-traveled places that actually need the most assistance, and those are the ones that are the hardest to have a 24-hour staffing for language translation.”
In the past, the arduous process of finding those translators has sometimes led physicians to forego finding one, Dr. Mehta says. The physician might use a family member or other person accompanying the patient as a translator or “assume that because they’re nodding or said yes, they actually understand the true request or question being asked of them.”
“That is a problem, when your people think, ‘Oh, I think they kind of understand English; let me get them to sign this.’ That is essentially what the rules are intended to protect patients from,” Dr. Mehta said. “But sometimes just access to technology is limiting. Rooms get cleaned, and equipment gets lost, so trying to find the one family member who speaks English or the dual-handset phone for your floor unit can be tough sometimes.”
Dr. Mehta knows the challenge that smaller-practice physicians like Dr. Benavides face with the cost of providing an interpreter. It’s especially a concern with the Medicaid patient population, he said, and any other programs with low physician payment. A 2013 study in the International Journal of Health Policy and Management cited a previous American Medical Association survey, which found the cost of interpreter services ranged from $30 to $400 per hour. The average Medicaid office payment for physicians was only between $30 and $50, the survey said.
“If you only have $40 for a re-visit, if you’re going to spend $25 of that on a phone call, is that going to discourage you from seeing that patient and encourage you to move that patient along to somebody else? That is a problem,” Dr. Mehta said. “I think it’s an under-visualized risk from most physicians’ perspective.”
Reassurances From OCR
In determining whether a practice has met its “reasonable steps” obligation, the final rule says, OCR will “evaluate, and give substantial weight to, the nature and importance of the health program or activity and the particular communication at issue to the individual with limited English proficiency,” and also take into account other factors, such as whether the practice has developed a written language access plan.
“Because the entities covered … are diverse in terms of size, type, level of resources, and communities served… (OCR) will evaluate an entity’s compliance by using a fact-dependent, contextualized analysis,” OCR said in a statement to Texas Medicine. “OCR will take into account all relevant factors, which may include, depending on the situation, the resources of the covered entity, the cost of the language services, and whether the entity frequently or only rarely encounters individuals with limited English proficiency who speak the language at issue.”
Responding in the rule preamble to concerns about the cost burden, OCR encouraged physicians and other covered entities to work together to provide language services efficiently and cost-effectively.
At an OCR briefing call on the final rule in early October, Jocelyn Samuels, director of OCR’s Office for Civil Rights, encouraged physicians to create a written language access plan and not wait until LEP patients show up in the office to figure out what to do.
During the call, TMA asked Ms. Samuels what reasonable steps a physician would have to take to satisfy the regulation for a language the physician has no expectation of encountering.
“If you hardly ever encounter a language, then the likelihood that we would require complete translations goes down,” she said. “It might be that all that would be required would be having a contract with a call center where the interpreter could summarize the document orally.”
She said there’s flexibility for physicians in meeting their language obligations under the rules. For instance, OCR doesn’t prohibit combining the required notice with other notices, Ms. Samuels told practitioners and other stakeholders on the call.
“We don’t want to micromanage how you actually do this posting,” she said. “But it does need to be in a sufficiently noticeable way that people will be apprised of the rights they have under the law.”
She gave examples of how OCR might evaluate certain communications to determine whether a practice is compliant. A diagnosis and treatment regimen, for example, is important to communicate properly in a given patient’s native language, Ms. Samuels said. But a more discretionary document, such as a pamphlet on healthy eating “that is maintained in an orthopedist’s office but not necessarily particularly related to the reason that someone might seek that doctor’s services — [it’s] still a good thing to provide steps for language assistance for, but maybe not as absolutely key a document as some other kinds of communications.”
Responding to a question about whether physicians could offer a list of LEP taglines differing from the state’s top 15 to tailor it to their county or area, Ms. Samuels said OCR hadn’t encountered that question before, but she indicated that OCR would probably be flexible.
“Look, we’re not engaged in a ‘gotcha’ game with our enforcement of this rule,” Ms. Samuels said. “And if, in fact, the taglines are really geared to the community in which the physician practice is, I would be surprised if we found a problem with that.”
Looking to Adjust
Dr. Benavides said in the past he made sure LEP patients had a companion who was “fairly fluent” in English and the patient’s language. For adult patients with hearing impairment, he says, he provided language access by typing questions and allowing them to type their responses.
“This one would be a little more difficult,” Dr. Benavides said. “For instance, now with meaningful use requirements, patients walk out with a set of discharge instructions, and those I can dictate with the dictating system. But then they [also] take out something that is written so they can follow the instructions. I’m not sure I could be able to do that in every language of every person I would treat.”
He said his practice was looking into what it was going to do to meet the LEP obligations and not break the bank.
Ms. Mayer says providing adequate language services is beneficial for more than just the patient.
“Having these people in good health is going to cost less for the government, too, because if they come [in] sick and they are not compliant because they … don’t have the full understanding of the condition, or because you cannot educate, these people are going to [end up] in the emergency room,” she said. “It’s going to cost the government to medicate [them]. I think … it is crucial also considering the fact that economically, it will have an impact. If the non-English speakers understand their care [from] an English speaker, it’s going to be more cost-effective.”
Dr. Mehta acknowledges the importance of equal access for LEP patients.
“But at the same time, if we’re unwilling to alter how we pay for these kinds of additional requirements, it just places more and more burden on the physician, and that’s going to be more difficult for us to bear over time,” he said. “We’re already bearing so many additional regulations and costs associated with it, and we’re already inefficient with our time given the technology that we’re now required to use.
“This just adds additional cost — clearly to the benefit of our patients. But how can the physicians keep bearing all expenses indefinitely?”
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.
Sample Language Help From TMA
TMA's white paper "Accommodation of Persons with Limited English Proficiency" addresses the U.S. Office for Civil Rights' (OCR's) new requirements to provide meaningful access to patients with limited English proficiency (LEP). The white paper, available only to TMA members, includes sample statements and notices practices can use to comply with the OCR rules, including a sample non-discrimination statement for small-sized publications and communications, and taglines in the 15 most-common languages spoken in Texas informing LEP patients of language assistance services.