HHS Guidelines for LEP Patients
The Department of Health and Human Services (HHS) has released a guidance document instructing physicians to provide and pay for language interpreters in their office (68 FR 47311). Relying on a 1974 case (Lau v. Nichols, 414 US 563) which held that Title VI of the Civil Rights Act of 1964 prohibits conduct that has a disproportionate effect on Limited English Proficiency (LEP) people, including failure to provide appropriate interpreters to patients, HHS developed four factors that providers must weigh in determining an appropriate response to LEP patients. These factors include:
- the number or proportion of LEP persons eligible to be served or likely to be encountered,
- the frequency with which the LEP individuals come in contact with the provider,
- the nature and importance of the program, activity, or service provided by the provider to people's lives and,
- the resources available to the provider and costs.
The guidance is now in force, although comments were accepted on the document through December 8, 2003. The guidance revised stricter rules issued in February, 2002.
A provider who accepts federal funds (aside from Medicare Part B monies) is amenable to these requirements when providing care to any patient.
No funding has been allocated to fulfill this mandate, although the four factor test softens earlier proposals by taking resources into account. The AMA has called for the creation of a new Medicare provider category that would fund interpreter services.
HHS intends to put forth guidance documents to help practitioners comply with these guidelines. Different providers will have different requirements, but it should be remembered that interpreters in the office are not necessarily required. Oral interpreters, translated documents, community advocates, referrals to physicians with appropriate capabilities and use of family members (where the physician makes clear to the patient that another translator will be provided if they desire) may be appropriate.
HHS is striving for voluntary compliance with the LEP guidance. Investigations will be conducted on a complaint-driven basis. Although HHS hopes to resolve noncompliance informally, continued lack of cooperation may result in termination of federal assistance.
Recall that in-office interpreters may be business associates or, alternately, workforce members under HIPAA. Depending on the designation, the interpreter would need to sign a business associate agreement or receive appropriate employee training, respectively.
