State, Federal Laws Must Be Followed
Practice Management Feature — November 2013
Tex Med. 2013;109(11):49-53.
By Crystal Zuzek
To give patients the best possible care, physicians must be able to communicate with them effectively, especially those who are hearing-impaired or who have limited ability to speak English.
Victoria Soto, an Austin health care attorney, says ignorance is no excuse for not complying with federal regulations on accommodating hearing-impaired and limited-English patients. She encourages physicians to develop and implement written procedures to help ensure compliance.
When physicians open the doors to their medical practices, she says, they must be able to treat limited-English patients and those with disabilities. "They can refer them to another physician if they can't accommodate them, but physicians need to have a policy and a procedure for that," said Ms. Soto, who represents physicians before the Texas Medical Board (TMB) and regularly speaks at medical conferences about compliance with antidiscrimination laws and other legal matters.
Not following the rules can lead to lawsuits.
A McAllen physician who requested anonymity was sued by a patient who is deaf. The patient alleged discrimination under the Americans With Disabilities Act (ADA) for not paying for a sign language interpreter. The physician settled the lawsuit for $4,000.
Before being sued, the physician communicated with patients who are deaf during exams by exchanging written notes. The physician doesn't mind donating time and money for worthy causes and regularly provides charitable care to indigent patients.
"What I do mind is being forced by the government to pay a fee to a sign language interpreter who is not needed or necessary," he said.
The physician says the cost of an interpreter's services is a financial burden on medical practices. The physician says certified sign language interpreters in the McAllen area charge $120 to accompany a patient who is deaf to a visit for which Medicaid pays the physician $40.
The Texas Medical Association's Policies and Procedures: A Guide for Medical Practices contains a sample customizable policy you can use to help ensure effective communication with all patients, including hearing-impaired and limited-English patients. The policy offers information about services, benefits, consent forms, rights, and financial obligations to each patient in a language that he or she understands. Visit the TMA website for more information about the guide and to order a copy.
Adhering to antidiscrimination regulations in medical practice is vitally important, Ms. Soto says. Patients can complain to TMB and the appropriate federal agency and sue if a physician does not provide proper accommodations under the law. Ms. Soto adds having policies for hearing-impaired and limited-English patients can help physicians defend themselves against lawsuits and in a case before the medical board.
TMA and the American Medical Association have policies on communicating with hearing-impaired and limited-English patients.
TMA policy on improving patient care quality by decreasing communication errors from language barriers supports educating medical residents on "laws and regulations on the use in clinical practice of medical translators, interpreters, and other communication services for patients who are deaf, hearing impaired, or with limited English proficiency."
The policy says that "each training site should educate residents on site-specific policies including orientation on the availability of such services and how and when such services should be utilized. Further, residents should be provided the broader education needed, including information on the potential liability risk, to ensure compliance with laws and regulations on the use of translators, interpreters, and other communication methods when the resident completes training and enters medical practice."
The AMA policy on unfounded bias against some medical patients affirms AMA's "support for the dignity and self-respect of all patients and opposes all acts of medically unfounded categorical discrimination against patients because of their medical condition."
ADA Legal, Financial Implications
Title III of ADA applies to most physician practices and generally prohibits discrimination. It further defines discrimination to include, in part, "a failure to take such steps as may be needed to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services."
"Americans with Disabilities Act and the Hearing Impaired," a white paper prepared by the TMA Office of the General Counsel, is available from the TMA Knowledge Center. To request the white paper, call the Knowledge Center at (800) 880-7955, or email firstname.lastname@example.org.
TMB Public Information Officer Jarrett Schneider says the Texas Medical Practice Act gives TMB authority to discipline physicians who engage in unprofessional or dishonorable conduct. This includes violating "any state or federal law if the act is connected with the physician's practice of medicine." Mr. Schneider says the medical board has received "a handful" of complaints this year related to failure by a physician to provide ADA accommodations, such as sign language interpreters, to a patient.
Penalties for ADA violations include requiring physicians to complete continuing medical education courses or the medical jurisprudence examination. TMB could fine the physician or resolve the case with a remedial plan. Remedial plans allow physicians to avoid formal disciplinary action primarily for minor administrative violations. TMB does not list the names of physicians who agree to the plan in its newsletter or press releases, but remedial plans are public documents and do appear on physicians' public profiles. TMB doesn't consider remedial plans to be disciplinary actions and doesn't report them to the National Practitioner Data Bank.
For more information about TMB's enforcement process, visit the TMB website.
Ms. Soto says TMB investigations can be time-consuming and cost physicians a great deal in legal fees.
"A TMB case could take up to two years to resolve, and the board will report any disciplinary action to the National Practitioner Data Bank. The implications are serious, so it's important that physicians take steps to adhere to regulations," she said.
The Department of Justice (DOJ), which enforces ADA, provides guidance on appropriate auxiliary aids and services for hearing-impaired patients in the ADA Title III Technical Assistance Manual. DOJ regulations say aids for effective communication include "qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons, videotext displays, and exchange of written notes "
If an interpreter is necessary, the law says the physician is responsible for paying for an interpreter and may not charge a person with a disability directly or indirectly to offset the cost of the interpreter.
Hearing-Impaired Interpreter Services
A medical practice can choose from a wide range of methods to ensure effective communication with hearing-impaired patients. For example, the DOJ technical assistance manual says exchanging notes and using hand gestures at a routine checkup with a patient who is deaf may provide an appropriate accommodation. Should the patient suffer a complex ailment, however, a qualified interpreter may be necessary to ensure effective communication with the patient.
DOJ defines a qualified interpreter as someone "who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary."
According to TMA's white paper, the government does not consider the ability to sign to be the same as the ability to interpret sign language. An office worker who can sign but lacks the skill to process spoken communication into the proper signs, and vice versa, will not meet the qualified interpreter mandate.
Allowing a patient's family member to interpret isn't illegal but can be risky. Family members may be hesitant to disclose some medical information, and that may hinder the free-flowing exchange of important personal information between the patient and physician, Ms. Soto says. Plus, impartiality is one of the elements necessary for an interpreter to be considered "qualified."
When considering whether to use a patient's family member as an interpreter, Ms. Soto implores physicians to use outside, independent professionals when possible.
"Physicians have no way of knowing what the patient's relationship is like with the family member. It's best to have an unbiased interpreter who has no personal involvement with the patient," Ms. Soto said.
The TMA Knowledge Center has a list of hearing-impaired interpreter services available throughout Texas. To request a copy of the list, contact the Knowledge Center at (800) 880-7955 or by email.
Physicians are responsible for choosing the appropriate accommodation for hearing-impaired patients. The DOJ technical assistance manual provides this illustration: "A patient who is deaf brings his own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. The physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary to ensure effective communication."
The manual adds that if the patient believes "the physician's decision will not lead to effective communication, then the patient may challenge that decision under title III by initiating litigation or filing a complaint with the Department of Justice."
If the DOJ sues a physician in U.S. district court and the physician is found guilty, the court may assess civil penalties or award monetary damages to the victims of discrimination. For specific information about penalties for ADA violations, consult the ADA Title III Technical Assistance Manual.
The Pacer Center has a Q&A document online, with additional information about physicians' legal responsibilities under ADA. The Pacer Center is a Minnesota-based training and information center for families of children with all disabilities.
Minimizing the Language Barrier
Federal law governs the responsibility of physicians who receive federal funds in treating limited-English patients. Guidance from the U.S. Department of Health and Human Services (HHS) Office for Civil Rights says, essentially, physicians who receive federal funds must take reasonable steps to ensure limited-English patients have a meaningful opportunity to participate in programs and services they otherwise would be entitled to. Compliance could be anything from using a language line that can translate several languages to hiring a full-time translator and making available all vital documents in languages other than English.
HHS has issued revised limited-English patient guidance, which gives examples of likely limited-English patient populations. One example is patients seeking Temporary Assistance for Needy Families and other social services.
"Accommodation of Limited English Proficiency (LEP) Persons," a white paper prepared by the TMA Office of the General Counsel, has more information and is available from the TMA Knowledge Center. To request the white paper, contact the Knowledge Center by telephone, (800) 880-7955, or by email.
Physicians who fail to minimize the impact of a language barrier could be in violation of the Civil Rights Act. To access additional LEP resources, visit the HHS website.
Crystal Zuzek can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.
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