Legal and Practical Implications of the Limited-English Speaking (LEP) Patient

Legal and Practical Implications of the Limited-English Speaking (LEP) Patient

Gem P. Daus, M.A.Executive Director, NCHIC

March 18, 2011UNC School of Dentistry

4th Annual Risk Management Seminar

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I. Understand terminology & what an interpreter doesII. Understand the role of NCIHCIII. Understand the legal & other requirements for

providing care to a limited-English proficient patientIV. Understand the cultural differences that can and do

impact care V. Considerations for an effective interpretation and

translation program in your dental practice.

Limited-English Proficient (LEP) Bilingual Translation Interpreting Sight translation

Limited-English Proficient◦ a legal concept referring to a level of English proficiency that

is insufficient to ensure equal access to public services provided in English without an interpreter [ASTM]

Bilingual◦ a person who has some degree of proficiency in two

languages. A high level of bilingualism is the most basic of the qualifications of a competent interpreter but by itself does not insure the ability to interpret.

Translation◦ the conversion of a written text into a corresponding written

text in a different language.

Interpreting◦ the process of understanding and analyzing a spoken or

signed message and re-expressing that message faithfully, accurately and objectively in another language, taking the cultural and social context into account [ASTM].

◦ Simultaneous, consecutive, relay (3 languages)◦ Face-to-face, telephone, remote video

Sight translation◦ oral rendition of written text from one language into

another language, usually done in the moment Consecutive Interpreting ◦ oral rendition of two language with pauses at appropriate

stopping places to allow for interpreting Simultaneous Interpreting◦ oral rendition of language with a short lag time as person is

speaking Dual-role interpreter◦ a bilingual employee who has been tested for language

skills, trained as an interpreter, and assumes the task of interpreter

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Interpreting is a triadic job provider + LEP + interpreter

Facilitate communication between individuals Interpreter says exactly what is being said by both

parties Transparent, must interpret everything that is being Uses 3rd person, except when working with children

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Converts language by meaning, uses same tone, level of vocabulary (register)

Clarifier or broker if s/he feels there may be a barrier to understanding

Stops session to ask clarification or for speed Pre-session with provider and LEP Cultural broker, purpose is to facilitate impact

culture may have on questions/responses

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familiarity with regionalisms and slang in both languages;

ability to identify differences in meaning due to dialects/regionalisms to ensure effective and accurate message conversion;

ability to communicate in all registers/levels of formality;

understanding of colloquialisms and idiomatic expressions in all working languages;

working knowledge of anatomy and physiology;

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extensive knowledge of the vocabulary and terminology related to diagnosis, prevention, treatment and management of illness and disease;

thorough understanding of key concepts in health care such as confidentiality, informed consent and patients’ rights;

thorough command of the vocabulary related to the provision of health care in both languages.

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Competencies (2)

Active listening skills Message conversion skills Clear and understandable speech delivery Memory Note taking

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Telephonic or Over-the-Phone-Interpreting (OPI) Video relay interpreting◦Useful for Languages of Lesser Diffusion◦Useful for speed◦Not as personal ◦Not an option in some circumstances (ambulances)

Face-to-face interpreting encounter in trauma cases

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I. Understand terminologyII. Understand the role of NCIHCIII. Understand the legal requirements for providing

care to a limited-English speaking patientIV. Understand the cultural differences that can and do

impact care V. How to construct, monitor and maintain an

effective interpretation and translation program in your dental practice.

1994 – first conference on medical interpreting (Seattle) 2000 – incorporated as 501(c)3

Multidisciplinary membership:Medical interpreters Interpreter service coordinatorsEducators/Trainers CliniciansHealth Care Personnel Policy makersAdvocates Researchers

Mission: to promote and enhance language access in health care in the United States.

www.ncihc.org [email protected]

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2004 National Code of Ethics for Interpreters in Health Care – guiding principles and values governing conduct; shoulds

2005National Standards of Practice for Interpreters in Health Care – what and how a competent interpreter does (accuracy, confidentiality, impartiality, respect, cultural awareness, role boundaries, professionalism, professional development, advocacy)

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Objective◦ To acknowledge the inherent dignity of all parties in the

interpreted encounter Code of Ethics◦ The interpreter treats all parties with respect.

Standards of Practice◦ The interpreter promotes direct communication among all

parties in the encounter. ◦ For example, the interpreter may tell the patient and provider

to address each other, rather than the interpreter.

Provide consistency in performance of role, leading to a dangerous potential for incomplete and inaccurate communication

Make health care providers and interpreters aware of the clinical and financial ramifications from using unqualified interpreters

Provide guidance when addressing ethical dilemmas during an interpreting encounter

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2001-2010 Published 13 working papers

Open calls/Webinars:Mental Health InterpretingVicarious Trauma/Interpreter Self-CareBest PracticesCertificationState policies (March 18, 2011, 1:00 p.m. EST)

2011National Standards for Healthcare Interpreter Training Programs

Collaborate with the Certification Commission for Healthcare Interpreters (CCHI) on a national certification http://www.healthcareinterpretercertification.org/

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Assure that the ethics and protocols identified as fundamental by the interpreting community are reflected in standard-based training

Help assure consistency and accountability in healthcare interpreter training programs

Define the role Standards of Training will play in national certification

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A. Civil Rights Act of 1964, Title VIB. Executive Order 13166 C. HHS OCR GuidanceD. CLAS Standards

http://www.lep.gov/faqs/faqs.html

Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English.

Anyone who answers less than “very well” to the question on the U.S. Census Survey: How well do you speak English?

* Language = “national origin”

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 42 U.S.C. § 2000d

Federal courts and agencies have interpreted discrimination by national origin to include language.

In other words: If someone discriminates against you because you can’t speak English, then it is a violation of your civil rights.

“By the authority vested in me as President by the Constitution and the laws of the United States of America…it is hereby ordered as follows:…

“…each Federal agency shall … implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency.”

President Clinton issued it in August 2000. President Bush re-affirmed it during his

administration. President Obama reaffirmed it Feb 7, 2011

Federal agencies must: Plan for their own programs to meet Title VI

standards Issue LEP guidances to their grantees

It makes federal agencies plan for meaningful language access to their programs and activities.

Federal agencies must make sure that: Federal fund grantees meet Title VI standards

Community members and organizations get a chance to speak to what the language access needs are

“No person may be subjected to discrimination on the basis of national origin in health and human services programs because they have a primary language other than English.”

- Notice regarding language (1980)

The Guidance is a document that sets a standard for how to comply with Title VI.

It does not establish any new requirements or mandates

A recipient* is any public and private entity receiving federal funds, including:

State, county, and local health and welfare agenciesHospitals and clinicsNursing homesSenior Citizen Centers

Managed care organizationsMental Health CentersOther programs that receive federal funds

*When the Guidance says, “recipient” , it means a “recipient of federal funds”.

A recipient must: Provide language assistance to LEP persons, to make

sure that they have equal access to programs and services.

Apply the LEP guidance to all the programs in the recipient’s organization (even if HHS funds only directly support one program).

A recipient cannot do the following towards LEP persons:

• Limit the scope or lower the quality of their services

• Delay the delivery of their services unreasonably• Limit their participation in a program• Require them to provide their own interpreters or

pay for interpreters.

OCR uses a 4 factor analysis to “test” if a recipient is complying with Title VI. The factors are:

◦Number or proportion - How many LEP persons are eligible to be served, or likely to be encountered?

◦ Frequency – How often do LEP persons come in contact with the program?

◦Nature and importance – How important is the program, activity, or service to people's lives?

◦Resources – What resources are available to the recipient? What will the costs be?

Recipients should make sure patient knows that an interpreter is available for free.

Possible options for interpreting services include:◦ Bilingual staff Staff interpreters◦ Contract interpreters Volunteer interpreters◦ Telephone language line

Recipients must not require a patient to use friends, family or minor children for interpretation

Interpreters should:◦Be proficient in English and the non-English language.◦Know special terms (such as medical, legal jargon), as

necessary◦Respect a patient’s rights to confidentiality and to

impartial interpreters◦Understand the role of interpreter (such as ethics and

practices).

If the recipient repeatedly uses a written material with LEP persons, it should translate that material into non-English languages that are regularly encountered.

Recipients should translate or communicate information in vital documents.

Vital documents are those that affect one’s legal rights or obligations. For example:◦Application and enrollment forms◦Letters or notices re eligibility or changes in

benefits◦Anything requiring a response◦Patient consent forms

The standards regarding language access services

(numbers 4 through 7) are based on Title VI!

The Office of Minority Health (OMH) issued these standards in 2000.

They are the first national standards for culturally and linguistically appropriate services (CLAS) in health care.

OMH designed the Standards to help organizations provide culturally and linguistically accessible services for all.

All patients should receive fair and effective CLAS and treatment

Offer and provide language assistance services, including bilingual staff and interpreter services.

Provide these services: at no cost to each LEP

patient/consumer, at all points of contact, in a timely manner, during all

hours of operation.

Make sure interpreters and bilingual staff are competently providing language assistance to LEP patients/consumers.

Not use family and friends to provide interpreting services (unless the patient/consumer makes a specific request).

Health care organizations should…

Provide both verbal offers and written notices to patients/consumers in their preferred language.

These notices should inform patients/ consumers of their right to receive language assistance services.

Make available easy-to-understand patient-related materials.

Post signs in the languages of the commonly encountered groups, and/or groups represented in the service area

Health care organizations should…



impact care V. Considerations for an effective interpretation and

translation program in your dental practice.

Explain to the LEP how the interpreter will be used Speak directly to the LEP Use regular volume Keep a pace easy for interpreter to follow Keep dialogue short (helps accuracy)

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Make eye contact; use first person and speak directly to the LEP

Avoid slang; explain terminology that might be hard to understand

Have patient sign waiver if they refuse an interpreter Have interpreter stand-by if LEP refuses an interpreter

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Ask LEP to bring own interpreter Ask another patient to interpret Ask a family member to interpret Ask a minor to interpret Ask a non-qualified staff member to interpret

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No set interpreter-to-patient ratio One example◦ For dental, the beginning (when the plan for the encounter is

laid out) and end of the encounter (when findings are presented)

◦ At the beginning, the provider and patient set some gestures to help them move through the procedure smoothly.

◦ If there is an urgent need to communicate during the session, the dental assistant simply goes down the hall and gets the interpreter to come back to that area for a bit and provide language support.

On-site◦ New patient visit◦ Exams◦ Children 7 and under◦ First time a patient has dental work done◦ Difficult procedures◦ Highly anxious patients

Remote◦ established patients on a treatment plan

Gem P. Daus [email protected] [email protected] www.ncihc.org

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Legal and Practical Implications of the Limited-English Speaking (LEP) Patient

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