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Interpreters: Communication at a Price
by: Cathy A. Sloane, Esq.
Published in the September/October 2007 Issue of
MD News Magazine
There are oftentimes misconceptions regarding the legal obligations of physicians when caring for hearing-impaired patients or patients who have limited ability to understand English. The following questions are frequently asked of legal counsel:
Am I legally required to provide an interpreter for my patient who is deaf? Title III of the Americans with Disabilities Act (ADA) requires physicians to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities unless doing so would result in an undue burden. What constitutes an effective auxiliary aid or service will vary depending on the unique facts of each situation.
The ADA does not mandate an interpreter in every situation. In circumstances involving short, simple communications, physicians may satisfy this requirement by using a notepad or other written materials. If communications are anticipated to be lengthy or complex, providing an interpreter may be the only way to satisfy the statute. The issue is always reaching a balance in providing for effective communication at a reasonable cost.
The best approach is to consult with patients as to an agreeable means of communication and to document that agreement in the patients’ charts. Although patients may request an interpreter for all visits, the physician makes the final decision as to when an interpreter is needed for care. The reasonableness of the physician’s decision can be subject to challenge if a patient later files a complaint under the ADA or initiates a lawsuit.
Am I legally required to provide an interpreter for my non-English speaking patient? Title VI of the Civil Rights Act of 1964 requires that recipients of federal financial assistance from the Department of Health and Human Services must take reasonable steps to provide Limited English Proficient (LEP) persons with meaningful access to their programs and activities. Physicians are covered entities if they receive any federal assistance including grants, training, use of equipment, donations of surplus property, or other assistance. The regulations do not apply to physicians who only receive Medicare Part B payments.
If the physician is a covered entity, obligations to LEP patients are again fact-dependent. The statute does not mandate an interpreter as a “one size fits all” solution. Physicians have considerable flexibility in determining what constitutes a reasonable solution in any given situation. Often, LEP patients bring a family member or friend to the office as an interpreter. This can be an acceptable solution. However, the physician should consider offering another qualified interpreter where there are concerns over completeness of communications, confidentiality, or conflicts of interest.
Compliance with the statute is determined by balancing four factors: the number of LEP persons encountered by the physician; frequency of contacts; nature of the services; and resources available to the physician. The Office of Civil Rights primarily seeks voluntary compliance through procedures in the Title VI regulations. Enforcement actions can result in termination of federal assistance or referral to the Department of Justice.
Who pays for interpreters? Physicians may not charge hearing-impaired patients or LEP patients for the cost interpreter services. By statute, costs must be absorbed by the physician or medical practice in the limited circumstances when an interpreter is necessary.
Physicians are not required to pay for an interpreter if the result is an undue burden. In determining whether an interpreter cost is an undue burden, physicians should consider the fees paid for medical services, the overall financial resources of the practice, and whether costs can be spread throughout the general patient base.
Further, patients may not unilaterally hire interpreters and then bill physicians for those costs. It is the responsibility of physicians to make arrangements for a competent interpreter, when necessary.
Conclusion
Physicians are not legally required to provide interpreters on demand but should strive to reach a mutually satisfactory agreement on the appropriate communication aid with each patient. When an interpreter is needed for a patient, those costs cannot be passed on to the patient.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.