Interpreters and The Medical Practice: What Every Physician Should Know

Published on: July 11, 2020

Revised July 2020

Health care provides have long been required to provide accommodation for patients who have limited language proficiency in English, or who face disabilities including impairment of hearing.

According to the U.S. Census Bureau, between 1980 and 2012 the percentage of foreign-born residents who speak a language other than English in their home increased from 70% to 84%.

Furthermore, the percentage of residents with some lack of English-speaking ability has remained constant during that time, at approximately 50%.

According to a 2014 article in the Disability Connection Newsletter, approximately 57 million Americans face some type of disability. The CDC’s 2012 health statistics summary reported that approximately 15% of American adults (37.5 million) aged 18 and over have some difficulty with hearing. One in eight people in the United States aged 12 years or older has bilateral hearing loss, based on standard hearing examinations.

Considering these statistics, it is important (and legally required) for health care providers to accommodate and provide assistance to patients with physical disabilities, including deafness or difficulty hearing, or to those who are limited in their ability to communicate in English. physicians are ethically and legally obligated to assess the communication needs of the patient and take steps necessary to allow for effective communication. In many instances, meaningful communication may only be achieved through use of interpreting services.

Studies have shown that using an interpreter to assist physician-patient communication improves the overall quality of patient care. When used appropriately, the use of an interpreter increases patient satisfaction, access to preventative care, understanding of treatment recommendations and medications, and compliance with follow-up recommendations.

In addition, federal and state anti-discrimination laws mandate that physicians take the necessary steps to ensure meaningful access to healthcare. This article will discuss the general requirements for providing access to services under the Civil Rights Act of 1964 [Limited English Proficiency (LEP) regulation] and the Americans with Disabilities Act (ADA) (Title III). By understanding these laws and taking steps to achieve compliance, physicians will reduce their liability risks and improve the quality of care they provide to their patients.

Providing interpreters for persons with Limited English Proficiency (LEP) (Title VI of the Civil Rights Act of 1964)

Title VI of the Civil Rights Act of 1964 provides that “no person in the United States shall, on grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (emphasis added) [42 U.S.C. §2000(d)]

Court cases have applied the Civil Rights Act to prohibit discrimination based on language as it is discrimination against national origin. Under the Act, healthcare providers who receive federal funds must take reasonable steps to ensure meaningful access by persons with limited English proficiency at no cost to the patient. Limited English proficiency generally refers to individuals who do not speak English as their primary language and have a limited ability to read, write, speak, or understand English.

According to the U.S. Department of Health and Human Services’ Office of Civil Rights (OCR), physicians should consider the following factors in determining the type of language assistance needed for patients with LEP:

1. the frequency with which LEP persons come into contact with the medical practice;
2. the number or proportion of the LEP population eligible to be served by the practice;
3. the nature and importance of the service provided; and,
4. the total resources available and the costs of providing the interpreting service. (OCR Guidance)

There are several options available to physicians when language assistance is needed. A physician group with a large population of patients who speak a particular language may use trained on-site interpreters. Bilingual staff can be trained to interpret when necessary. Keep in mind that not all bilingual staff members are proficient in interpreting medical terminology; they should receive appropriate training to ensure competency (see Competency of interpreters). Telephone interpreter services may be particularly helpful when a patient speaks a language that is not commonly spoken in the area. (OCR Guidance)

In general, physicians are responsible for the fees associated with providing interpreter services, as historically third-party payors will not reimburse for these services. However, physicians are encouraged to check state and local regulations and third-party payors to see if there are any reimbursement options available.

Competency of interpreters

Per the OCR, physicians should take reasonable steps to determine that an interpreter’s ability to accurately interpret for the patient. The physician should consider the interpreter’s proficiency in both English and the other language; knowledge in both languages of medical terms; sensitivity to the patient’s culture; and understanding of confidentiality and ethical rules. The interpreter should also be sensitive to the culture of the physician. Sending bilingual staff to a formal training program in medical interpreting can certainly ensure or enhance competency. (OCR Guidance)

Training programs vary in comprehensiveness and length depending upon the objective; a program to train bilingual staff to occasionally interpret will not be as comprehensive as a program to train full-time interpreters. The Language Services Resource Guide for Healthcare Providers published by the National Health Law Program (www.healthlaw.org) contains a list of interpreter training programs throughout the country. Consider helping your patients access “I Speak Cards.” Check with your state’s Social Services Department to learn more about the “I Speak Cards.”

Using family and friends as interpreters

Physicians should never require an LEP patient to use a family member as an interpreter. (OCR Guidance) Patients should be advised that they have the option of using alternative interpreting services. Family and friends may be used to interpret upon patient request; however, this practice is discouraged because of the risk of interpreting errors or omissions that could compromise the quality of care. Furthermore, there may be times when the nature of the discussion is sensitive, and it may be inappropriate or traumatic for the family member or friend to be involved in the discussion. The physician should make arrangements for a qualified interpreter to assist with communication. Never use a minor child to interpret for his/her family member.

Written translation of vital documents

Depending on the number of LEP patients a physician treats, the physician may have the obligation to translate certain vital documents into the language(s) spoken by their eligible patient population. Physicians should use the four-factors mentioned above to assess the translation needs of their patients. For example, if a physician practice has a large Vietnamese-speaking patient population, the physician may determine, using the four-factor analysis, that certain documents should be translated into Vietnamese. Not all documents require translation, only documents that are considered “vital.” Examples of vital documents could include consent forms, patient intake forms and patient education materials. More information on the written translation requirements can be found in the Department of Health and Human Services’ (HHS) Policy Guidance Summary. The HHS Guidance . . . “provides recipients with a ‘safe harbor’ that, if undertaken, will be considered strong evidence that the recipient has satisfied its written translation obligations.” (OCR Guidance)

Penalties for non-compliance

Title VI does not establish a private cause of action for patients to sue their physician alleging that they were not provided with appropriate language assistance. Patients can file a complaint with the Department of Health and Human Services’ Office of Civil Rights. The OCR will investigate all complaints. If the OCR determines a violation occurred, the Office will attempt to obtain the physician’s voluntary compliance. If compliance is not achieved, possible penalties include termination of federal program participation, referral to the Department of Justice, or any other means authorized by law to redress the violation.

For more information about LEP, visit www.lep.gov and review the FAQ section.

Providing interpreters for persons who are deaf or hard of hearing (Americans with Disabilities Act)

The Americans with Disabilities Act (ADA), a federal regulation which prohibits discrimination against the disabled, may require a physician to provide and/or pay for an American Sign Language interpreter for a deaf or hard of hearing patient.

The ADA’s Title III – Public Accommodations prohibits discrimination against individuals based on disability, including the deaf or hard of hearing, in any place of public accommodation. The law specifically lists a professional office of a health care provider as a place of public accommodation. [42 U.S.C. §12101 et seq.]x For information on other ADA provisions, see Figure 1.

Under the ADA, physicians must provide for auxiliary aids and services to “effectively communicate” with the deaf or hard of hearing. Auxiliary aids and services include interpreters, note takers, written materials, and assistive listening devices or services such as a Remote Video Interpreting (VRI). [ADA Title III 2010 Regulations, 28 CFR §36.303(a)-(f)]

ADA Title III 2010 Regulations, 28 CFR §36.303(c) defines “effective communication:”

“(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.

(i) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.

(ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

(2) A public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her.

(3) A public accommodation shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication, except –

(i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or

(ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.

(4) A public accommodation shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.

Undue burden

A physician is not required to use a sign language interpreter if he or she can show that to do so would create an undue burden. However, demonstrating that providing an interpreter would impose an undue burden may be very difficult. The “undue burden” refers to the overall operating costs of the practice, not the cost of the individual patient visit. In other words, even if providing an interpreter for a patient costs more the reimbursement received for the patient visit, that in and of itself, does not create an undue burden. Courts would consider factors such as the overall operating income of the practice and the frequency of patient visits requiring an interpreter.

Interpreters for deaf or hard of hearing patients – other relevant laws

In addition to the ADA, there are other federal and state laws that are relevant to the issue of providing auxiliary aids to the deaf or hard of hearing. The federal Rehabilitation Act prohibits physicians who receive federal funds from discriminating against or denying benefits to any qualified individual with a disability. State-specific civil rights laws also contain anti-discrimination laws which apply to the deaf or hard of hearing. See Figure 2.

Penalties for non-compliance

Disabled patients (including visually- and hard of hearing patients) who allege denial of an ADA accommodation (including, but not limited to, auxiliary aids and services and barrier removal) may institute a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. “Upon timely application, the court may, in its discretion, permit the Attorney General to intervene in the civil action if the Attorney General or his or her designee certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security. . . ” [ADA Title III 2010 regulations, 28 CFR §36.501(a)].

Based upon the investigation, the Attorney General may file a civil complaint against a physician in a US District Court. Relief in these US District Court claims can result in any or all of the following:

(1) The Court may grant any equitable relief that it court considers to be appropriate, including, a) granting temporary, preliminary, or permanent relief; b) providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and c) making facilities readily accessible to and usable by individuals with disabilities.

(2) The Court award other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and

(3) The Court may, to vindicate the public interest, assess a civil penalty against the entity in an amount not exceeding $96,384 for the first violation, or $192,768 for each subsequent violation. (28 CFR §36.504(a)(3)(i-ii) and 28 CRF §85.)

State anti-discrimination laws vary from state to state but may provide for damages, attorneys’ fees and injunctive relief for patients who allege violation of the law. For example, in California, patients who allege that they have been discriminated against on the basis of a disability may be entitled to triple damages for each offense (but in no case less than $4000) and attorneys’ fees [California Civil Code §52(a)] Violation of the ADA also constitutes violation of California’s Unruh Civil Rights Act. [California Civil Code §51(a)]

Considering the serious legal and monetary ramifications of being found in violation of the above-mentioned laws, if a patient insists that an interpreter is the only way to achieve effective communication, the physician would be well-advised to provide a sign language interpreter.

Recommendations

Know that it is the responsibility of the physician to ensure that patients receive the assistance necessary to achieve effective, meaningful communication.

• Develop office policies and procedures that identify and address the needs of patients with limited English proficiency and the deaf or hard of hearing.
• Take steps to ensure effective communication when using interpreters.
  • (a) Although you have the ultimate decision about the auxiliary aid to be used to achieve effective communication, be certain to consult with a disabled patient whenever possible to determine what the appropriate auxiliary aid.
  • (b) Address the patient, not the interpreter. Pose questions directly to the patient instead of turning to the interpreter to ask the question.
  • (c) Allow for extra time for the appointment when communicating with a patient through an interpreter. Speak slowly and pause to allow time for interpreting.
  • (d) Ask the patient if he or she has any questions during the discussion, especially after key points have been made or vital information was discussed.
  • (e) Use drawings and diagrams, if appropriate, to help the patient understand what is being said.
  • (f) Ensure that the quality of the Video Remote Interpreting is similar to what you would require for telemedicine/telehealth service.
  • (g) Remind the interpreter that all information discussed must be kept confidential. If you frequently work with an interpreter or interpreting group, consider having a BA Agreement signed to ensure the interpreter and you are in compliance with HIPAA.
  • (h) Ensure patient privacy if using a telephone interpreter.
• To ensure competency, train bilingual staff who will act as interpreters. A formal training program should be considered.
• Use caution when utilizing a family member as an interpreter. Issues such as competence, appropriateness, and confidentiality must always be considered.
• Document the name of the interpreter in the patient’s medical record. If a family member or friend is used to interpret, also document his/her relationship with the patient and that the patient requested the family member/friend be used.
• Consider the nature of the information discussed when assessing the needs of language or communication assistance. A friend may be appropriate to interpret for a patient who is being seen for a common cold; a trained interpreter should be used when discussing a complicated diagnosis and treatment plan.
• Distribute written patient education materials to supplement your oral discussion. Provide translated information when possible. Document that written information was dispensed.
• Contact the MIEC Claims Department if there is a dispute between the physician and patient over the provision of an accommodation.
• MIEC does not endorse products or websites; however, www.DeafDOC.org is site developed by physicians (one deaf from birth and the other the child of deaf parents). The website offers ASL interpreter training, and other helpful educational resources.

Figure 1:

Americans with Disabilities Act – Other provisions

In addition to the non-discrimination section of the Public Accommodations clauses discussed in this newsletter, the ADA contains other sections which may potentially impact a physician’s practice. The sections impose non-discrimination requirements for certain employers and barrier removal and new construction requirements for places of public accommodation.

ADA Title I – Employment – Applies to employers with 15 or more employees and prohibits discrimination based on a disability. Requires employers to make reasonable accommodations to persons with disabilities unless the accommodations would create an undue hardship. (42 U.S.C. §12112, et seq.)

ADA Title III – Public Accommodations – barrier removal and new construction requirements – requires businesses to remove communication and architectural barriers wherever such removal will be readily achievable. (42 U.S.C. §12181(7)(F) et seq.) (28 CFR §36.304)

More information and resources for physician practices may be found on the federal government ADA website (www.ada.gov). The website contains the ADA Guide for Small Businesses which provides guidance on how businesses can meet the barrier removal and new construction requirements of the ADA. (https://www.ada.gov/reachingout/smbusgd.pdf)

Figure 2: State-Specific Civil Rights Laws

California – CA Civil Code §51(b)

“(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Idaho – Idaho Code §67-5901, et seq.

“The general purposes of this chapter are:

(1) To provide for execution within the state of the policies embodied in the federal Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended, and Titles I and III of the Americans with Disabilities Act.

(2) To secure for all individuals within the state freedom from discrimination because of race, color, religion, sex or national origin or disability in connection with employment, public accommodations, and real property transactions, discrimination because of race, color, religion, sex or national origin in connection with education, discrimination because of age in connection with employment, and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights and privileges of individuals within the state.”

Hawaii – Hawaii Revised Statutes §489-3 (Public Accommodations)

“Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.”

Alaska – Alaska Statutes §18.80.200, et seq.

“(a) It is determined and declared as a matter of legislative finding that discrimination against an inhabitant of the state because of race, religion, color, national origin, age, sex, physical or mental disability, marital status, changes in marital status, pregnancy, or parenthood is a matter of public concern and that this discrimination not only threatens the rights and privileges of the inhabitants of the state but also menaces the institutions of the state and threatens peace, order, health, safety, and general welfare of the state and its inhabitants.

(b) Therefore, it is the policy of the state and the purpose of this chapter to eliminate and prevent discrimination in employment, in credit and financing practices, in places of public accommodation, in the sale, lease, or rental of real property because of race, religion, color, national origin, sex, age, physical or mental disability, marital status, changes in marital status, pregnancy or parenthood. It is also the policy of the state to encourage and enable physically and mentally disabled persons to participate fully in the social and economic life of the state and to engage in remunerative employment. It is not the purpose of this chapter to supersede laws pertaining to child labor, the age of majority, or other age restrictions or requirements.”