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Providing Interpreters

Added by Hawley Troxell in Articles & Publications, Health Law on February 14, 2012

Physician offices often ask whether they must provide an interpreter if a patient does not speak English. Federal civil rights laws[1] require recipients of federal financial assistance (including providers who participate in Medicare Part A and Medicaid) to take reasonable steps to accommodate persons with limited English proficiency (“LEP”). This may include hiring or providing an interpreter and/or translating key documents such as consents, medical histories, HIPAA notices, instructions, etc.

According to HHS Guidelines,[2] whether it is reasonable to provide an interpreter and/or translated documents to a particular patient depends on four factors: (1) the number of or proportion of LEP individuals likely to be encountered by the provider (i.e., whether there is a high number of LEP persons in the provider’s community who speak a particular language); (2) the frequency with which such LEP persons come to the provider; (3) the nature and importance of the services provided by the provider (i.e., whether the delay or denial of the provider’s services would jeopardize the LEP person’s health); and (4) the cost and resources available to the provider (i.e., whether the provider can offer an interpreter at a reasonable cost even though the cost may exceed reimbursement for the encounter).

Application of the factors will depend on the circumstances so there is no black and white rule for determining when interpreters must be provided; however, if a provider offers primary care or critical specialty services and there is a large LEP population in the area who speaks a particular language such as Spanish, the provider should probably make arrangements for an interpreter and translate key documents in that language. The HHS Guidance suggests ways the provider may do so, including hiring and training bilingual staff or contracting with an interpreter service.

Providers should never require the patient to provide their own interpreter, and the provider should be wary of using the patient’s family members or friends to interpret since they may lack the expertise necessary to communicate effectively. Although providers must provide an interpreter at their own expense, they are not required to accept or pay for the interpreter selected by or accompanying the patient.

Even if the regulations do not require an interpreter in a particular circumstance, providers cannot obtain informed consent or provide appropriate care unless they can communicate effectively with the patient. If you are going to undertake the care of a patient, make sure you can communicate with the patient through an interpreter or otherwise. This applies to persons with physical or mental disabilities as well as LEP persons.

The Office of Civil Rights maintains a helpful website that provides guidance and tools and additional resources are available here.

If you have questions about these or other legal issues, please contact a member of our Health Law group or call 208.344.6000.

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[1] Civil Rights Act of 1964, 42 U.S.C. 2000(d) et seq. Similar requirements may exist under state civil rights acts. See, e.g., Idaho Human Rights Act, I.C. 67-5901 et seq. (prohibiting national origin discrimination by places of public accommodation).

[2] Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 F.R. 47311 (Aug. 8, 2003).