Physicians are subject to a wide range of federal and state mandates impacting their practice. Some of these requirements are murky, such as laws addressing discrimination against patients who speak limited or no English.
Physicians are subject to a wide range of federal and state mandates impacting their practice. Many of these laws require physicians to implement policies and procedures in their offices to remain compliant. Some of these requirements are murky, such as laws addressing discrimination against patients who speak limited or no English.
Title VI of the U.S. Civil Rights Law of 1964 has been interpreted to prohibit hospitals, physicians, and other healthcare providers receiving “federal financial assistance” from discriminating against patients who do not speak English. The U.S. Department of Health and Human Services (HHS) published a list of the types of federal financial assistance to which Title VI applies, which includes services reimbursed under Medicare Part A.
However, Medicare Part B payments were not included, because those payments were deemed to be made pursuant to “insurance contracts,” and they were expressly excluded from the definition of federal financial assistance. Thus, under prior law, physicians who received Medicare Part B payments, and no other “federal financial assistance,” were not required to comply with Title VI and its regulations.
However, a subsequent change in federal law that became effective in 2010 modified the definition of federal financial assistance to include payments under insurance contracts. Although clarifying regulations have not yet been adopted, it appears that this change would re-characterize Medicare Part B payments as federal financial assistance, and on that basis, physicians receiving Medicare Part B payments would now be subject to Title VI.
The HHS Office of Civil Rights (OCR) has provided guidance for use on a case-by-case basis to determine what language services must be provided to patients with no, or limited, English proficiency (LEP) pursuant to Title VI.
OCR’s most recent guidance provides a four-part test for physicians to use in evaluating how to fulfill their responsibilities to LEP patients. It requires a determination of:
Next: Considerations for small practices
To apply OCR’s test, physicians should look first at their prior experience with LEP encounters and demographic data for their eligible service population, including census data, to determine what languages are spoken by LEP persons in their service area.
Second, physicians should assess the frequency with which they will or should have contact with an LEP patient. The more frequent the contact with a particular language group, the more likely language services in that language will be needed.
Physicians who encounter LEP patients on a daily basis have greater duties than physicians who serve LEP patients on an unpredictable or infrequent basis. Physicians who encounter LEP patients on an infrequent or unpredictable basis might use one of the commercially available telephonic interpretation services to obtain real-time interpreter services to ensure that LEP patients have access to their services.
Third, physicians need to consider whether denial or delay of access to their services or information could have serious or life-threatening implications for a LEP patient.
Physicians must take into account whether the services or information are important and urgent, to determine if immediate language services are necessary. Physician services are important, but not always urgent; therefore, providing language services may be delayed for a reasonable period of time.
Last, a physician’s level of resources and the costs imposed on the physician to provide language services should be considered when determining what steps the physician should take to comply.
Even though costs may not be considered reasonable when the costs exceed the benefits of providing the language services (e.g. providing on-site interpreter services), physicians should remember that costs may be reduced by technological advances, sharing language assistance materials, use of bilingual staff, pooling resources, standardizing documents, or the use of qualified community volunteers.
OCR recognizes that small practices with tighter budgets can not be expected to provide the same level of language services as larger recipients with larger budgets.
Importantly, HHS uses this same four-part test when evaluating whether physicians are in compliance with Title VI. Services required may include translating certain forms and documents into foreign languages and providing oral interpreter services for patients, either in person or via telephone.
Physicians should inform their LEP patients that they have the option of having an interpreter without charge or of using their own interpreter (e.g. a family member or friend). However, physicians cannot force patients to use their family member or friend as an interpreter.
Additionally, physicians should remember that family members, especially children, may not be appropriate interpreters because they may not provide quality and accurate interpretations, and privacy and conflict of interest issues may arise.
Importantly, OCR recognizes the possibility of referring a LEP patient to another physician for language assistance, only when there is no discriminatory intent, and it will result in better access for the LEP persons.
For example, it would not be reasonable for a physician to refer a LEP Spanish-speaking patient to another physician without first ensuring that the other physician provides language services for Spanish-speaking patients, has availability, and is in the patient’s geographic area.
Physicians in private practice who receive federal financial assistance and serve LEP patients on a regular basis are required to provide some level of language services under Title VI to ensure that they are not discriminating against LEP patients. Keep in mind, there may also be state laws that bear on this situation. As always, it would be wise to consult with your attorney.