Effective communication between a physician and their patient is critical to a successful treatment relationship. Even in the best of circumstances, however, we know that physicians and patients often have markedly different impressions of what is said during an interaction or the meaning of information provided. When a language barrier is present, or a patient has a hearing or visual impairment, these communication challenges multiply. How physicians address such challenges has multiple legal implications.
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against visually impaired and deaf and hard-of-hearing people in places of public accommodation. Included within the definition of places of public accommodation is any “professional office of a healthcare provider,” regardless of the size of the office or number of employees. Thus, the ADA applies to doctors, dentists, psychiatrists and psychologists, hospitals, nursing homes and health clinics, and all other providers of mental and physical care. Accordingly, the ADA requires hospitals to provide effective means of communication for patients, family members, and hospital visitors who are visually impaired, deaf, or hard of hearing.
Public accommodations must comply with specific requirements related to effective communication with people with hearing, vision, or speech disabilities. Specifically, unless a hospital or physician can demonstrate that providing communication aids or services would fundamentally alter the nature of the goods or services offered, or would result in an undue burden, a hospital or physician must 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.
Auxiliary aids and services relating to communications, in turn, include:
- Qualified interpreters;
- Transcription services;
- Written materials;
- Telephone handset amplifiers;
- Assistive listening devices;
- Assistive listening systems;
- Telephones compatible with hearing aids;
- Closed-caption decoders;
- Open and closed captioning;
- Telecommunications devices for deaf persons (TDDs);
- Videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
- Qualified readers;
- Taped texts;
- Audio recordings;
- Braille materials; and
- Large-print materials or other methods of making visually delivered materials available to individuals with visual impairments.
The U.S. Department of Justice (DOJ) has issued memorandums outlining the obligations of physicians and other healthcare providers to provide auxiliary aids or services to people with hearing impairments. The memo recommended that healthcare providers consult with patients about appropriate auxiliary aids and services. The memo noted, however, that private providers are not required to accede to a patient’s specific choice of auxiliary aid or service as long as the provider satisfies his or her obligation to ensure effective communication.
In comparison, healthcare providers working at public entities or hospitals must have a conversation with patients as part of a doctor’s process in providing effective communication, and physicians must give primary consideration to the patient’s choice (see “Americans with Disabilities Act Title II Requirements,” above).
The DOJ has indicated that in determining what constitutes an effective auxiliary aid or service, healthcare providers must consider, among other things, the length and complexity of the communication involved. For example, a note pad and written materials might be sufficient for some routine appointments, to discuss uncomplicated symptoms or minor injuries, or to complete insurance forms or medical history inquiries. When the information is lengthy or complex, however, such as a patient’s discussion of symptoms with medical personnel or a physician’s presentation of diagnosis and treatment options to patients or family members, it might be necessary to provide a qualified sign language interpreter or other interpreter; the use of handwritten notes might be inadequate.
The DOJ also has specified that hospitals should have arrangements in place to ensure that qualified interpreters are readily available on a scheduled basis, and on an unscheduled basis with minimal delay, including on-call arrangements for after-hours emergencies. Larger facilities can choose to have interpreters on staff. Hospitals should develop protocols and provide training to ensure that hospital staff know how to obtain interpreter services and other communication aids and services when needed.
The DOJ has recommended hospitals have signs and other types of notices to advise persons with disabilities that services and assistance are available, along with what they need to do to obtain them. A hospital must be prepared to make and receive relay system calls.
If telephones and televisions are provided in patient rooms, hospitals must provide patients who are deaf or hard of hearing comparable accessible equipment upon request, including TDDs, telephones that are hearing-aid compatible and have volume control, and televisions with closed captioning or decoders. For training or other educational services offered to patients or members of the public, additional aids and services (e.g. note-takers, captioned videos, assistive listening systems) might be necessary for effective communication.
Visual alarms are not required in patient rooms. However, evacuation procedures should include specific measures to ensure the safety of patients and visitors who are deaf or hard of hearing. Certain built-in communication features required for hospitals built or altered after the effective date of the ADA in 1992 include:
- Visual alarms, which must be provided in all public and common-use areas, including restrooms, where audible alarms are provided;
- TDDs, which must be provided at public pay phones serving emergency, recovery, or waiting rooms, and at least one TDD must be provided at other locations where there are four or more pay phones; and
- A certain percentage of public phones that must have other features, such as TDD plug-in capability, volume controls, and hearing-aid compatibility.
Also important: Hospitals and healthcare providers are not allowed to charge patients with a disability to cover the costs of providing auxiliary aids and services. Instead, the costs must be treated as overhead expenses that are passed on to all patients.
Effective March 15, amendments to the ADA regulations will take effect modifying both Title II and Title III. One of the relevant changes to the regulations include video remote interpreting (VRI) services as a kind of auxiliary aid, which could be used to provide effective communication. VRI is an interpreting service that delivers high-quality video images over dedicated lines or wireless technology.
The amended Title II regulations effective March 15 also expand on the explanation of an effective auxiliary aid and provide that “in order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” A public entity cannot require an individual with a disability to bring another individual to interpret for him or her, or rely on an adult accompanying an individual with a disability to interpret or facilitate communication, except in the case of an emergency or when the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.
Similarly, a public entity cannot rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public and no interpreter is available.
Title IV of Civil Rights Act
Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English might be eligible to receive language assistance with respect to particular services, benefits, or encounters.
Title VI and U.S. Department of Health and Human Services (HHS) regulations require recipients of federal financial assistance from HHS to take reasonable steps to provide meaningful access to limited-English-proficiency (LEP) persons. Recipients of HHS assistance might include hospitals, nursing homes, home health agencies, managed-care organizations, universities and other entities with health or social service research programs, and state, county, and local health agencies. It might also include Medicaid agencies, state, county, and local welfare agencies, programs for families, youth, and children, Head Start programs, public and private contractors, subcontractors, and vendors, and physicians and other providers who receive financial assistance from HHS.
HHS has indicated that the obligation to provide meaningful access is fact-dependent and starts with an individualized assessment that balances four factors:
- Number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
- Frequency with which LEP individuals come into contact with the program;
- Nature and importance of the program, activity or service provided by the recipient to its beneficiaries; and
- Resources available to the grantee/recipient and the costs of interpretation/translation services.
HHS notes that there is no “one size fits all” solution for compliance with respect to LEP persons, and what constitutes “reasonable steps” for large providers might not be reasonable where small providers are concerned.
Use of family members or friends. HHS has indicated that some LEP persons feel more comfortable when a trusted family member or friend acts as an interpreter. When an LEP person attempts to access the services of a recipient of federal financial assistance, who upon application of the four factors is required to provide an interpreter, the recipient should make the LEP person aware that he or she has the option of having the recipient provide an interpreter for them without charge, or of using their own interpreter. Recipients also should consider special circumstances that might affect whether a family member or friend should serve as an interpreter, such as whether the situation is an emergency, and whether there are concerns over competency, confidentiality, privacy, or conflict of interest. Recipients cannot require LEP persons to use family members or friends as interpreters.
Vital documents. Recipients can use the four factors to determine if specific documents or portions of documents should be translated into the language of frequently encountered LEP groups eligible to be served or likely to be affected by the recipient’s program. Recipients should assess whether specific documents or portions of documents are “vital” to the program, information, encounter, or service involved, and the consequences to the LEP person if the information in question is not provided accurately or in a timely manner.
Compliance plans. HHS provides recipients with a “safe harbor” that, if undertaken, will be considered strong evidence that the recipient has satisfied its written translation obligations. If a recipient determines that it should provide language assistance services, a recipient might develop an implementation plan to address the identified needs of the LEP populations it serves. Recipients have considerable flexibility in developing this plan, but should: 1) identify LEP individuals who need language assistance; 2) identify language assistance measures (i.e. how staff can obtain services or respond to LEP callers); 3) train staff; 4) provide notice to LEP persons (e.g. posting signs); and 5) monitor and update the LEP plan.
Voluntary compliance efforts. The Office for Civil Rights and HHS have indicated they are committed to assisting recipients of HHS financial assistance in complying with their obligations under Title VI of the Civil Rights Act of 1964. HHS provides a variety of practical technical assistance to recipients to assist them in serving LEP persons so that they are in compliance with the Title VI regulations. The requirement to provide meaningful access to LEP persons is enforced and implemented by the HHS Office for Civil Rights through the procedures identified in the Title VI regulations. These procedures include complaint investigations, compliance reviews, efforts to secure voluntary compliance, and technical assistance.
Additionally, the American Medical Association has prepared the “Office Guide to Communicating with Limited English Proficient Patients” (download a PDF at www.ama-assn.org/ama1/pub/upload/mm/433/lep_booklet.pdf), which provides useful guidance to physicians.
The requirements for providing assistance to patients presenting with a language barrier, or patients who have hearing or visual impairments, are challenging. Advance planning for interacting with such patients can assist in successful physician-patient communications. Nonetheless, there is no “one size fits all” approach. Accordingly, if you have a question about a specific situation, consult the Office for Civil Rights (www.hhs.gov/ocr), the Department of Justice ADA Information Line (800-514-0301), or an attorney. TH
Carmen Decker is an attorney with Hershey Skinner, LLC, specializing in the representation of healthcare and licensed professionals. Kari Hershey is general counsel to the Colorado Medical Society and an instructor at the University of Colorado Law School.