Language assistance services for non-English-speaking patients
Legally Speaking
Robert M. Portman, JD, MPP, is a health care attorney with Powers Pyles Sutter & Verville, in Washington, DC, and serves as legal counsel for the AAD and AADA.
By Christina L. Krysinski, JD, and Robert M. Portman, JD, January 1, 2019
The ability to communicate effectively with patients is essential to providing quality care. If English is not a patient’s primary language, you may need to provide interpretation services or translated written materials. This article covers your obligations to patients with limited English proficiency, as well as privacy and payment concerns for language assistance services.
Q: Am I required to provide interpretation services?
A: Yes, if you receive federal financial assistance (including Medicaid, CHIP, or Medicare Part A payments).
Under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act (ACA), recipients of federal financial assistance must take reasonable steps to make their services available to individuals with limited English proficiency. Recipients of federal financial assistance include health care providers participating in Medicaid or the Children’s Health Insurance Program (CHIP) and hospitals and nursing homes receiving payments under Medicare Part A.
KEY POINT: Receiving only Medicare Part B payments does not count as receiving federal financial assistance.
If you are a covered provider, you should use the following factors to determine what reasonable steps to take to ensure meaningful access to your services for individuals with limited English proficiency:
- How many of your patients have limited English proficiency and the proportion of these patients to your total patient population;
- How often you come into contact with patients with limited English proficiency;
- The nature and importance of the services that you provide; and
- Available resources and the cost of providing language assistance services.
Based on these factors, you must design their services to ensure that they are meaningfully accessible to individuals with limited English proficiency.
Certain providers may also be required by accrediting agencies or by state law to provide language assistance services. In addition, failure to provide language assistance services may be unethical under standards of medical ethics. A recent article from the American Medical Association Journal of Ethics specifically focuses on the ethical implications of failing to provide appropriate language assistance in dermatology; learn more at https://journalofethics.ama-assn.org/article/clinicians-obligations-use-qualified-medical-interpreters-when-caring-patients-limited-english/2017-03.
Q: Am I required to provide translated written materials?
A: Yes, if you receive federal financial assistance (including Medicaid, CHIP, or Medicare Part A payments).
Under Title VI, “vital documents” may need to be translated into frequently encountered languages. Whether a document is vital depends on the importance of the service and the information provided, as well as the consequences to the patient of not receiving the information. The following are potentially vital documents: consent forms, complaint forms, intake forms, notices regarding eligibility for benefits or services, notices advising people of free language assistance, documents that must be provided by law (e.g., HIPAA notice of privacy practices), and applications to participate in a program or to receive benefits.
In addition, the ACA requires covered providers to provide non-discrimination notices and descriptions of the availability of free language assistance services in the top 15 non-English languages in their state. HHS has compiled a list of these languages for each state at www.hhs.gov/sites/default/files/resources-for-covered-entities-top-15-languages-list.pdf. HHS’s regulations also provide templates for these notices at Appendixes A and B to 42 C.F.R. Part 92.
Q: Who can provide interpretation and translation services?
A: Interpreters and translators must be qualified to provide language services. You should exercise caution when a patient chooses a family member or friend as an interpreter.
In order to be a competent interpreter, an individual must be more than just bilingual. The ACA requires that interpreters and translators be “qualified.” Under HHS’s guidance, a qualified interpreter is one who is “able to interpret effectively, accurately, and impartially, both receptively and expressively, using any specialized vocabulary required by the circumstances.”
If you frequently serve patients who speak a particular language, hiring bilingual staff and interpreters may be the best option. Many providers also contract with in-person, telephone, or video conference interpreters, especially when there is not a regular need for a particular language or when there is a need for services in many different languages. Many community-based organizations provide interpretation services and you can enlist the services of qualified community volunteers. All interpreters, whether employees, contractors, or volunteers, should be familiar with the subject matter of the conversation and competent in the skill of interpreting, as well as knowledgeable of confidentiality and conflict of interest issues.
Some patients may feel more comfortable having a family member or friend act as an interpreter. However, a patient cannot be required to use a family member or friend. Providers must offer the patient the choice of interpretation services arranged for by the provider at no cost. There may also be situations where use of a family member or friend, especially a child, is inappropriate. For example, patients may be uncomfortable discussing confidential or potentially embarrassing information in the presence of their child or the child may not be old enough to accurately translate the medical information being presented to their parent. Family or friends may also have a conflict of interest that interferes with appropriate interpreting (for example, where there is domestic abuse). Providers should exercise caution when a patient chooses a child as an interpreter and should make their patients aware of possible problems, including competency and confidentiality.
Ultimately, you should respect a patient’s desire to use an interpreter of their own choosing. Where a patient voluntarily chooses to use their own interpreter, such as a family member or friend, it is a good idea to maintain a record of your offer of no-cost interpretation services and of the patient’s choice.
Q: Do patients need to provide authorization in order for me to share their information with an interpreter?
A: No. When a health care provider uses an interpreter to communicate with a patient, the patient’s authorization is usually not required.
HIPAA generally allows covered health care providers to use or disclose a patient’s protected health information (referred to as “PHI”) without obtaining a patient’s authorization for the purposes of treatment, payment, and health care operations. Providing language services will usually fall within a provider’s health care operations under HIPAA. As a result, you do not need a patient’s authorization to share their PHI with an interpreter when the interpreter is a member of your workforce (i.e., an employee or a volunteer) or when you contract with another entity (called a “business associate”) and have an appropriate business associate agreement in place that provides assurances about how the business associate will handle PHI and meet other requirements. If you contract with an outside company or community organization to provide interpretation and translation services, you should have a business associate agreement in place with that entity in order to comply with HIPAA.
HIPAA also permits a provider to disclose PHI to a patient’s family member or other person identified by the patient as their interpreter for a particular health care encounter. As with other disclosures to persons identified by a patient as involved in their care, you can obtain the patient’s agreement or use your professional judgment to reasonably infer that the patient does not object to the disclosure of PHI to the interpreter.
Q: Can I charge for translation and interpretation services?
A: Providers that receive federal financial assistance must provide free language assistance services.
Section 1557 of the ACA requires that providers receiving federal financial assistance provide language assistance services free of charge. This means that you cannot charge a patient for necessary interpretation or translation services. In addition, state law may prohibit you from billing your patients for language assistance services. Telephone interpretation services or community-based organizations that organize qualified volunteer interpreters may be low-cost options for providing necessary language assistance services to your patients.
The Americans with Disabilities Act (ADA) of 1990 is a federal civil rights law that prohibits discrimination based on disability. The ADA includes regulations on providing certain auxiliary aids and services to ensure effective communication with patients with covered disabilities, such as hearing or sight impairments. However, the ADA does not consider lack of English proficiency to be a covered disability, and such regulations would therefore not apply to non-English-speaking patients who do not have an ADA-covered disability. For more information on ADA compliance, visit staging.aad.org/dw/monthly/2017/may/is-your-dermatology-practice-ada-compliant.
