Title VI of the Civil Rights Act of 1964 prohibits those who receive federal funding, including providers of Medicaid or Medicare services, from discriminating on the basis of a person's national origin, including the language he or she speaks.
Consequently, physicians who participate in Medicaid, Medicare, or any other federally funded program must ensure meaningful access to those programs for all individuals with limited English proficiency ("LEP individuals") by providing oral language assistance.
Additionally, hearing-impaired patients may be considered disabled under the Americans with Disabilities Act (ADA), such that physicians are required to make reasonable modifications to provide those patients with meaningful access to health care.
Informal Interpreters
The U.S. Department of Health and Human Services (HHS) suggests several options for providing oral language assistance, including hiring bilingual staff, hiring staff interpreters, contracting for in-person or telephonic interpreter services, and engaging community volunteers.
Another option is to enlist family members or friends of patients as informal interpreters. This is allowed under Title VI as long as (a) the LEP individual has already been made aware of the right to receive free interpreter services from a neutral person and has declined that offer, and (b) the informal interpreter's vocabulary, facility with both languages, and cultural competence allow for accurate translation. Family members (especially children) or friends may not be competent to provide quality and accurate interpretations.
Also, if an LEP individual has chosen an informal interpreter and the physician later determines that the informal interpreter is not competent or appropriate, the physician should provide competent interpreter services to the LEP individual in place of or in addition to the informal interpreter.
Privacy Issues
Under HIPAA, a physician is not generally required to obtain the patient's authorization to use or disclose personal health information to an interpreter. Where the interpreter is a member of the physician's staff, the interpreter is part of the covered entity and is bound by HIPAA to the same extent as the physician.
If a physician has an ongoing contractual relationship with an interpreter, either through a commercial service or a community-based organization, the physician should have a business-associate agreement in place with the interpreter.
If the patient chooses to use an informal interpreter who is not a business associate or staff member, the patient's presence during the disclosure of health information creates a reasonable inference that the patient does not object to such disclosure.
HHS allows significant flexibility in the implementation of oral language assistance. The steps a particular physician or entity must take depend on (1) the number or proportion of LEP individuals served, (2) the frequency with which LEP individuals access the physician's services, (3) the nature and importance of the physician's services, and (4) the resources available to the physician and the costs of those resources.
The Office of Civil Rights (OCR) Region One office is available to help physicians determine which steps might be reasonable given individual practice situations. For more information, call the OCR at (617) 565-1340.
- Liz Rover Bailey, Esq.
This column is provided for educational purposes and should not be construed as legal advice. Readers with specific legal questions should consult with a private attorney.
Originally published in the Feb. 2006 issue of Vital Signs, the MMS member newsletter.
