Observations from the Legal Trenches

Provision of Interpreters in the Provision of Medical Treatment

Physicians are familiar with the term “covered entity” in the context of discussing the applicability of HIPAA requirements to an individual or entity. The use of the term may not be as readily identifiable in determining when a physician or medical practice must provide an interpreter under the American Disabilities Act (ADA) for those with certain disabilities or “limited English proficiency” under the Civil Rights Act (CRA). In such instances the definition includes “an entity that operates a health program or activity, any part of which receives Federal financial assistance” as defined by 45 CFR §92.4. A “health program or activity” includes hospitals, health clinics or physician practices among others. “Federal financial assistance” includes reimbursement from Medicaid and/or Medicare. Below is a brief discussion of one such circumstance.

Communication with Individuals with Hearing Disabilities

The ADA requires that “appropriate auxiliary aids and services” are provided to certain individuals including those with hearing disabilities. In evaluating the appropriate auxiliary aid or service, the ADA requires several factors be taken into consideration, such as the complexity of communication involved. The ADA also provides that the wishes of the individual with the disability be given primary consideration. For example, it may be appropriate to use an interpreter.

Physicians are required to bear the cost of providing the auxiliary aid or services, unless doing so causes an undue burden, meaning a significant difficulty or expense. 28 CFR §36.104 provides factors that should be considered in determining whether an undue burden exists. Additionally, a physician cannot require the hearing disabled individual to bring their own interpreter or require that an adult accompanying the individual interpret unless the individual specifically requested by the patient or where there is an emergency. Minors may not be relied upon to interpret except in certain emergencies.

If an interpreter is utilized, they may interpret in person or via electronic means as long as the individual is a “qualified interpreter” as defined by 45 CFR §92.4 as one who:

(i) Adheres to generally accepted interpreter ethics principles, including client confidentiality; and

(ii) is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, terminology and phraseology.

Accordingly, the individual need not be a certified interpreter as long as the person meets the physician determined the above qualifications are met. Additionally, if engaging the services of an outside interpreter, the physician practice should have that individual complete a Business Associate Agreement (BAA) to comply with HIPAA.

As this is not a comprehensive review of all requirements, additional guidance for physician practices can be found at: https://www.ada.gov/effective-comm.htm.

Ms. Beggs, of the Law Offices of Lyn E. Beggs, PLLC, focuses her practice primarily on administrative and professional licensing board issues, focusing on healthcare providers. Ms. Beggs holds a CHC (Certified in Healthcare Compliance) and also assists practices with healthcare compliance matters including fraud and abuse prevention and HIPAA compliance. Ms. Beggs may be reached at 775-432-1918 or at [email protected].