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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
Here are four tests for your medical practice to apply in deciding how to meet your obligation to LEP patients.
Communication is an essential component of providing quality care. So what happens if you have a patient that is unable to express their symptoms or understand your advice because of a language barrier? This might happen where a patient is hard of hearing or deaf, or where the patient speaks a language other than English. This type of patient is referred to as having Limited English Proficiency (LEP).
Under Title VI of the Civil Rights Act of 1964, it is a violation of the law for any facility that receives public health service funding, federal grants, or funding for most teaching programs to discriminate on the basis of national origin - including on the basis of English proficiency. This means that medical practices participating in Medicare and Medicaid are subject to this law.
According to HHS' Office of Civil Rights (OCR), providers are expected to take “reasonable steps” to ensure access for LEP patients. But it’s not always clear exactly what steps these may be. In deciding how your practice can meet its obligations to LEP patients, there are four major considerations:
1. What is the number/proportion of LEPs that will be serviced or encountered in your practice? Take a look at the community in which your practice is located and the population from which it draws its patients. While an operational practice will already have a sense of the patient population which it is serving, a new practice may need to do some research. Is your practice population changing or are you anticipating change?
2. How often will the practice have encounters with LEP patients? Depending on how often a practice will come into contact with an LEP patient will determine the steps that need to be taken. A practice that sees more LEP patients may need to take steps that are not reasonable for one that sees fewer. If your practice is located in an area that has a large speaking Polish population (and you anticipate serving this population), you might be expected to take steps to facilitate services in Polish. If a single patient comes to your practice that speaks Portuguese, the same standard would not necessarily apply.
3. What is the nature of the service being provided? Some medical services are more important than others. While immediate translation services might be essential to complete a consent form for emergency services, not all healthcare needs rise to the same level of urgency. This does not mean they are not provided, but in some cases a written translation, versus an in-person translator, might get the job done.
4. What is the cost of serving the LEP patient and what is reasonable? Under the law providers must take “reasonable” steps to facilitate access by LEPs, but what is reasonable can differ based on the size of a group, the practice’s overall resources, safety requirements and other factors. Since the cost of interpretation services can exceed reimbursement for the patient visit (and patients cannot be asked to cover the translation costs), physicians must think carefully about how best to serve the LEP patient population. For example, if an on-site interpreter costs too much, the physician might enter into a contract with a telephonic interpretation service or hire bilingual staff. The OCR also encourages sharing language materials with other providers in the area or standardizing preprinted documents to minimize cost.
Finally, doctors should always inform a patient of the interpretative services available and should never require a patient to use friends and family to interpret. In fact, the use of friends and family may not be appropriate (even if a patient expresses a desire to use that individual), due to issues of competency, confidentiality, privacy, or conflict of interest.
Treatment of LEP patients is viewed by many physicians as a financial burden, but it’s still a legal obligation that must be addressed. Every practice must develop policies and strategies to identify its patients’ needs for language assistance. It’s also important to locate available resources (as well as other practices that might share cost) and to train staff to implement the practice’s protocols. Here is additional information on LEP requirements.