Practice of Medicine
Rights & Best Practices: Caring for Patients with Limited English Proficiency
November 10, 2020
Per Section 1557 of the Affordable Care Act (ACA), healthcare organizations must take reasonable steps to provide meaningful access for and cannot discriminate against patients with Limited English Proficiency (LEP).
A patient with LEP is one whose primary language for communication is not English, and whose ability to read, write, speak, or understand English is limited (i.e., a non-English-fluent patient or a deaf or blind patient). What constitutes “reasonable steps to provide meaningful access” for a patient with LEP varies, but generally involves providing language assistance services such as oral language assistance or written translation.
Language assistance services must be provided free of charge and in an accurate and timely manner. If a patient calls before his or her appointment and requests interpretation or translation services, the practice is allowed a reasonable amount of time to accommodate the request. It is generally agreed that 72 hours is reasonable, therefore healthcare organizations should have protocols in place to accommodate a patient’s request for language assistance services within three business days. A healthcare organization is not required to provide in-person interpretation services; video remote interpretation (VRI) or telephone interpretation may be sufficient.
When an interpreter is provided, he or she needs to be a qualified language interpreter -- not the patient’s friend or family member. The patient will need to truly understand the risks, benefits and alternatives of treatment to adequately give their informed consent, and a qualified interpreter can ensure that occurs. It’s also worth noting that inconsistent use of an interpreter or not using interpreters at all can lead to adverse outcomes and a greater risk of malpractice liability. Some of these adverse events include delays in care, inaccurate assessment of the severity and duration of symptoms, and the inability of the patient to inform clinicians of duplicate doses and procedures.
On June 12, 2020, the U.S Department of Health and Human Services (HHS) issued a final rule, adding a four-factor analysis to Section 1557. Practices should consult these four language assessment factors to determine the extent of their responsibilities to LEP patients: (1) the number or proportion of LEP persons eligible to be served or likely to be encountered by the practice; (2) the frequency with which LEP individuals come in contact with the practice; (3) the nature and importance of the program, activity, or service provided by the practice to people's lives; and (4) the resources available to the practice and costs.
The Office for Civil Rights (OCR) is designated to enforce compliance with Section 1557. If a healthcare organization is not compliant, the OCR can require corrective actions such as revising policies and procedures and implementing training or monitoring programs. If the required actions are not implemented, the OCR can suspend or terminate federal financial assistance from HHS. A noncompliant healthcare organization may also be required to pay compensatory damages. For example, a hospital had to pay $80,000 in damages and a $5,000 civil fine after failing to provide interpretive services, and a medical center paid $200,000 in damages and a $75,000 civil penalty for failing to provide an interpreter in advance of a patient’s scheduled medical procedure.
Access to Language Services
Many health insurers, such as Blue Cross Blue Shield, Cigna, and Aetna, provide language assistance services free of charge to providers. The patient or the provider can call the number listed on the insurer’s website and request an interpreter or written language translation services.
Although a variety of healthcare language assistance services exist, not all of them are reliable. The following are some reputable service providers you may want to consider using:
- CyraCom (offers language assistance services in-person or via phone, video, mobile app, or written text)
- Stratus Video (products include video remote interpretation, over-the-phone interpretation, onsite interpretation, and telehealth interoperability)
- LanguageLine Solutions
- Canopy Speak (good option for small providers --- their app offers translations in over 15 languages)
- During an appointment, a deaf patient requests the practice provide an in-person interpretation. What should the practice do? The first option is to offer the in-person interpretation, regardless of cost to the practice. The second option is to provide a high-quality video interpretation service. What is not an option for the practice is to do nothing and tell the patient to seek treatment elsewhere, because the practice has a duty to take reasonable steps to provide meaningful access.
- A patient has trouble understanding English and asks the physician if her minor child can translate for her. How should the physician respond? First, the physician should not rely on the minor child to translate. The physician also should not rely on unqualified staff to act as an interpreter. In this situation, reasonable steps may include providing written translated materials to the patient, writing on a notepad (if the patient is proficient in written English), using a qualified translator or providing a video remote interpretation service.
MagMutual’s Risk Management Recommendations
- Post a notice of individuals’ rights providing information about communication assistance for individuals with limited English proficiency (HHS’s Translated Resources).
- Post taglines indicating the availability of free language assistance services in at least the top 15 non-English languages spoken in the state in which your practice is located or does business (HHS’s Translated Resources and HHS’s Estimates of Top 15 Languages in Each State).
- Use high-quality video remote interpreting services and ensure your practice has sufficient Wi-Fi connectivity. We recommend testing the system a few hours before the patient comes in to make sure it’s working. If the system is not working, then you will have time to schedule an in-person interpreter.
- Don’t rely on unqualified staff to act as translators when providing LEP services.
- When providing translation services, document the company used, the interpreter’s name and ID number, and if applicable, whether an interpreter was offered and refused.
- Take reasonable steps to provide meaningful access, and don’t tell a patient with LEP to seek treatment at another practice.
- When required, provide translation/interpretation services at no cost.
- Don’t require an individual with LEP to bring an interpreter and don’t rely on a minor child or accompanying adult to facilitate communication, except under very limited circumstances.
- When provided, translators or interpreters must meet specific minimum qualifications, including ethical principles, confidentiality, proficiency, effective interpretation and the ability to use specialized terminology as necessary in the healthcare setting.
- We recommend your organization develop and implement a language access plan to ensure reasonable steps are taken to provide meaningful access to each individual who may require assistance.
- HHS – Sample Policy and Procedures for Effective Communication with LEP Persons
- Office of Minority Health – Health Care Language Services Implementation Guide
- HHS – Section 1557: Frequently Asked Questions
- MagMutual – Don't Get Lost in Translation
- MagMutual – Communication in the Medical Office
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The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.