Legal Risks with Non-English Patients

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Legal Risks with Non-English Patients Essay

Imagine yourself at 2 a.m. trying to determine if a patient clutching his chest is having a myocardial infarction, but this patient doesn’t speak a word of English. Would you use a Spanish-speaking housekeeper to translate or call a nurse away from her duties in the intensive care unit?Legal Risks with Non-English Patients Essay

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Both of these options are legally risky, says Val Warhaft, MD, chief medical officer of Emergent Medical Associates, an organization that manages the emergency departments of several hospitals in southern California. “They are fraught with potential bias, violation of patient confidentiality, and ultimately, risk, if things don’t go well.”

EDs nationwide are caring for increasing numbers of non-English speaking patients and patients with limited English proficiency (LEP). There is no question that these patients present significant liability risks. “As an ED physician, having someone with whom I cannot communicate with is very, very risky,” says Warhaft.Legal Risks with Non-English Patients Essay

In addition, if the physician doesn’t fully understand the patient’s complaint, there is a tendency to order extensive diagnostic tests to mitigate potential legal risks. “I am covering that which I don’t understand by ordering additional labs and studies,” says Warhaft.

Give patients “meaningful access”

To comply with federal regulations, you must provide “meaningful access” in your ED for non-English speaking and LEP patients, says Sue Dill, RN, MSN, JD, director of hospital risk management for Columbus, OH-based OHIC Insurance/The Doctors Company.

If you fail to provide this access, your ED could face malpractice lawsuits, fines, and violations of federal regulations, she warns.

“I think the potential risks are increasing as more EDs see more LEP patients,” adds Mara K. Youdelman, a staff attorney with the Washington, DC-based National Health Law Program.Legal Risks with Non-English Patients Essay

While federal regulations don’t specify a time frame for providing translation services, some states do. For example, New York state now requires emergency departments to provide interpreters within 10 minutes.

Language barriers may affect the delivery of adequate care through poor information exchange, loss of important cultural information, misunderstanding of physician instructions, poorly shared decision-making, and difficulty obtaining informed consent, says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT

Many courts have begun to interpret Title VI of the Civil Rights Act of 1964 as protecting individuals from language discrimination, based on the concern that language restrictions might veil discrimination based on race and national origin. Language discrimination also is covered under the Americans with Disabilities Act, notes Monico.

“The potential exists for malpractice lawsuits due to improper medical care, lack of informed consent, or breach of duty to warn, he says.”

To reduce liability risks when caring for non-English speaking patients, do the following:Legal Risks with Non-English Patients Essay

Post a sign in your ED that reads “Interpreting services available at no cost to the patient” in the most common languages spoken by patients in your community.
A guidance from the Washington, DC-based Office for Civil Rights states that hospitals should notify patients of the availability of free interpreter services. (A complete copy of the guidance can be accessed at http://www.hhs.gov/ocr/lep.) Having a sign posted illustrates the hospital’s recognition of the responsibility to provide competent language services and that it does not expect patients to bring family members or friends. “It also can help make patients more comfortable if they see information in their own language, and let them know that the hospital is trying to reach out,” says Youdelman.

Use competent interpreters. “There is a ton of medical literature on the issue of what constitutes cultural competence,” says Dill. “Competency requires more than self-identification as bilingual.” Bilingual staff or community volunteers may be able to speak Spanish when communicating information directly in that language, but they may not be competent to interpret in and out of English, or may not be able to perform written translations.
In addition, some languages have regional differences in usage of words or phrases. “A word that may be understood to mean something in Spanish for someone from Cuba may not be so understood by someone from Mexico,” says Dill. Your interpreter must be aware when languages do not have an appropriate direct interpretation of certain terms and be able to provide the most appropriate interpretation.Legal Risks with Non-English Patients Essay

Avoid using family members to interpret.
“I would say that there is really no time that it is appropriate to use a family member except perhaps in an emergency while a competent interpreter is being obtained,” says Youdelman.

Family members should not be used except in an emergency or if this is specifically requested by the patient, says Dill. If the patient asks that a family member is used, have the patient sign a waiver. “If a waiver is in the file, it may be more difficult for a person to later claim that an interpreter was not offered,” says Youdelman.

Also have a competent interpreter listen in to ensure that the family member is indeed competent to interpret. “If the hospital allows the family member to interpret but has reason to believe the interpretation is not accurate, the hospital could still be at risk,” explains Dill.

Verify the patient’s request with an impartial interpreter and don’t just take the word of the family member who is interpreting. “Also, make the patient aware that the services can be provided at no cost to the patient,” says Dill.Legal Risks with Non-English Patients Essay

Untrained interpreters may omit or add facts, substitute their own comments, or volunteer answers for the patient, says Youdelman. “They may also inject their own opinions and observations, or impose their own values and judgments as they interpret,” she says.

Patients may not give complete information if family or friends are translating. “Using trained interpreters can ensure confidentiality, prevent conflict of interest, and make sure that medical terms are interpreted correctly,” says Youdelman.

Comply with the Emergency Medical Treatment and Labor Act (EMTALA).
Under EMTALA, you are required to assess and treat non-English and LEP patients just as you are for English-speaking patients. “There are particular EMTALA issues regarding potential transfers,” adds Youdelman. “Patients will not be able to give consent to a transfer if a competent interpreter or translated materials are not provided.”Legal Risks with Non-English Patients Essay

Also, you may not be able to provide a medical screening examination as required by EMTALA if there is a language barrier and a competent interpreter is not utilized. “This could raise liability issues if the screening process is inaccurate and the hospital fails to provide treatment because of a failure to fully communicate with the patient,” Youdelman says.

Consider using video technology.
A growing number of EDs are implementing real-time video technology that allows staff to use a portable unit to speak with trained interpreters in more than 100 languages, including sign language. This system is called MARTTI (My Accessible Real-Time Trusted Interpreter) and was developed by the Columbus, OH-based Language Access Network. “It’s almost as though the person is right in the room at your bedside,” says Warhaft. “It allows me to communicate in real time in a very effective manner through the language barrier. This clearly reduces the risk profile of the encounter.”

The cost benefits to the ED are direct and indirect, including both the savings of no longer having to maintain a cadre of interpreters, and the malpractice suit that never occurs, says Warhaft.Legal Risks with Non-English Patients Essay

“Prior to MARTTI, we had to rely on anyone available to help with translations — family, non-medical personal, or AT&T telephone operators,” says Rhonda Robinson, RN, ED manager at Olympia Medical Center in Los Angeles.

Whenever possible, ED staff used nursing staff to translate, with a list kept with the nursing supervisor of staff names and languages spoken, but depending on the time of day, these individuals were not always available. It was also legally risky to depend on the translator’s perception of the patient’s complaint and history, adds Robinson.

“Often patients felt very uncomfortable discussing health issues with family or friends, and would not always disclose the full complaint or medical history,” she says.

There was also a patient confidentiality issue when using non-medical persons for help with translations. “Now the patient can see the translator, and the translator can see the patient and the ED physician, providing a more private process for all,” says Robinson. “We can access this immediately and not have to wait for someone to assist us, which means the patient’s complaint is addressed quicker

Standards for legal psychiatric nursing practice
Legal parameters for practice are established through a variety of sources. Many measures exist against which a nurse’s practice can be judged. State boards of nursing govern the scope of practice, defining the requirements and limitations for nursing practice within a given state. Federal and state statutes direct practice; for example, virtually all states have laws outlining the reporting of child and elder abuse. Case law (ie, legal findings related to particular court cases) also set precedence for legal practice; for example, the Tarasoff case of the mid-1970s set a standard for the duty to protect third parties against harm that has become the benchmark in subsequent cases in other states. The Centers for Medicare and Medicaid Services, formerly known as the Health Care Financing Administration (HCFA), set stringent regulations for organizations that receive such federal funding; for example, regulations define acceptable inpatient staff-to-patient ratios and proper training and use of seclusion and restraint. The Joint Commission on the Accreditation of Healthcare Organizations is another body that sets rigorous standards for institutions that seek accreditation [1].Legal Risks with Non-English Patients Essay

Psychiatric nurses look to professional nursing organizations to define safe and acceptable practice through published standards. The American Nurses Association published Scope and Standards of Psychiatric-Mental Health Nursing Practice [2] in 2000. This comprehensive document outlines levels of psychiatric nursing practice and identifies specific standards of practice for nursing activities and criteria for measuring the standards. Similarly the American Psychiatric Nurses Association (APNA) and the International Society of Psychiatric Nurses (ISPN) have published standards that guide practice. Involvement in professional organizations can help nurses keep informed of current published standards as well as other issues [1].Legal Risks with Non-English Patients Essay

Finally, developments in clinical practice guide legal practice. In addition to the foundation of knowledge and skills attained through basic nursing preparation, psychiatric nurses should remain current in clinical areas through participating in educational programs and reviewing the literature.

Patient rights and nursing responsibilities
Least restrictive alternative: seclusion and restraint
By law, psychiatric treatment must be provided in a manner that allows the most freedom and the least restriction to meet the particular needs of a patient [3]. Consequently a variety of treatment settings exist, and inpatient treatment is reserved for patients who are mentally ill and require a high degree of monitoring for personal safety or the safety of others. Likewise, seclusion and restraint must be used only when other less restrictive means have been considered and ruled out.Legal Risks with Non-English Patients Essay

There has been a major movement to decrease if not eliminate the use of seclusion and restraint in psychiatric settings in the United States. Concerns about the immorality of the use of such measures, including the potential for physical and psychological injury to patients, and concerns about the violation of civil rights have fueled this movement. Today hospital policies and governmental agencies and psychiatric organizations provide stringent guidelines that dictate the use of these treatment options. In 1999, the HCFA issued new guidelines for the use of seclusion and restraint, which include the requirements of a face-to-face assessment within 1 hour of the initiation of seclusion or restraint and limit the amount of time before a renewal order for seclusion or restraint is required [4].Legal Risks with Non-English Patients Essay

Seclusion and restraint may be used legally only in emergent situations for the least amount of time necessary to protect the patient or others from imminent harm. Objective documentation must support the emergent need for such measures and that alternatives were considered. Nurses are responsible to uphold these standards and to ensure that seclusion and restraint are not used as threats, as punishment, or for staff convenience. Seclusion and restraint may not be used as part of a behavioral management program or as a unit policy (eg, a unit policy indicating that any patient found with contraband will be secluded for 1 hour). The APNA published its Position Paper on the Use of Seclusion and Restraints in 2000 [5]. Excerpts from this paper follow:Legal Risks with Non-English Patients Essay

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•Training programs focused on the prevention and use of seclusion and restraint must be provided during a staff member’s orientation and at least annually thereafter.
•The decision to initiate seclusion or restraint is made only after it is determined that the benefits associated with the use of restraint or seclusion outweigh the risks of their use.
•Within 1 hour of the initiation of seclusion or restraint, a face-to-face evaluation by a physician or Licensed Independent Practitioner is conducted to determine the patient’s current status, including mental status, physical status, and any risks associated with the initiation or continuation of seclusion or restraint [5].
Right to refuse treatment
The right to refuse treatment often is regarded as a patient’s right to refuse medication. Today patients have the right to refuse medications unless court ordered to take the medication or in emergent situations and then with limited use. This is a change from previously when it was accepted that a patient who was involuntarily committed did not have decision-making capacity and was not able to refuse medication.Legal Risks with Non-English Patients Essay

Even patients who are under civil commitment and prisoners who are mentally ill do not forfeit all of their civil liberties and have the right to refuse medication. Involuntary medications can be administered to patients with a physician’s order to prevent immediate danger to the patient or others. Nurses are responsible to assess and document objectively in such cases. There is also a judicial process by which a patient can be determined to be incompetent to refuse medication, in which case medication may be court ordered [6].

With the advent of newer psychotropic medications, clinicians may believe that the benefits far outweigh the risks of medication; however, the patient retains the right to make this decision. In addition to concerns about side effects, there are a multitude of reasons why patients might refuse medications, including denial about having a mental illness and the stigma of taking a psychotropic medication. Although psychiatric nurses can inform patients about benefits, risks, and alternatives to medication, forcing a patient to take medication, without the aforementioned exceptions, exposes the nurse to possible liability.Legal Risks with Non-English Patients Essay

Confidentiality
Psychiatric nurses are responsible for maintaining the confidentiality of information shared by patients with the treatment team and within the medical record. The American Nurses Association Code of Ethics for Nurses [7], many state nursing practice acts, and most mental health facilities have statements regarding confidentiality. Because of the nature of psychiatric care, patients must be able to trust that what is shared is used for treatment purposes only and is not released to parties who have no need to know and no legal right to know.Legal Risks with Non-English Patients Essay

Nurses must safeguard confidentiality by discussing patient care matters in private areas and protecting the medical record by not leaving documents within the view of others outside the treatment team, properly disposing of discarded documents with patient information such as report sheets, and closing computer screens displaying patient information when not in use. In groups and in family situations, nurses also must be mindful of what information is shared without the patient’s consent and instead encourage self-disclosure by the patient when indicated. When patients wish to have information shared with other people or organizations, such as an insurance agency or other health care provider, proper consent for release of information should be obtained.Legal Risks with Non-English Patients Essay

Privileged communication is a right of patients that protects information from being shared in a court of law. Although lawyer-patient and psychiatrist-patient privileged communication rules have been established, not all states clearly define privileged communication between nurse and patient [8]. There may be cases in which a nurse could be compelled to share in court information that would be considered confidential. In some circumstances, breach of confidentiality is legal, including the duty to protect third parties and mandated reporting of abuse, which are discussed subsequently.Legal Risks with Non-English Patients Essay

Duty to protect third parties
In the mid-1970s, what has come to be known as the Tarasoff decision [9] established a therapist’s duty to protect third parties from foreseeable harm. In this case, a college student, Tatiana Tarasoff, was killed by a fellow student who had told his therapist of his plan to kill her. Although the psychologist notified campus police of the threat and sought unsuccessfully to have the patient committed to a mental hospital, the therapist failed to inform the intended victim or her family. This widely held principle states that when specific threats are made to a therapist about a specific victim, the therapist has a duty to warn the intended victim. There have been many variations among jurisdictions of this position since the original findings, not all in agreement with the Tarasoff decision, that weigh the patient’s right to confidentiality against the duty to protect the third party, and some rulings argue against a therapist’s ability to predict violence accurately. In general, the duty to warn exists in cases when a patient makes a specific threat about a specific intended victim and in cases when a patient has a prior history of violence. Clinicians are protected against breach of confidentiality when making a warning in good faith [10].Legal Risks with Non-English Patients Essay

Mandated reporting
As mentioned earlier, virtually all states have mandated reporting laws for health care workers regarding suspected child and elder abuse and neglect. Some states have mandatory domestic violence reporting laws. State departments of social or human services oversee this reporting mechanism. There must be clear evidence of harm except in cases in which serious harm may result from neglect. Careful assessment and clinical judgment are invaluable in such cases [11]. When reports are made in good faith, health care workers are protected from breach of confidentiality and civil action. Failure to follow reporting regulations is subject to legal action.Legal Risks with Non-English Patients Essay

Psychiatric home health nurses may find evidence of abuse or situations of imminent danger in patient’s homes. In emergent situations, local law enforcement may be contacted. It may be helpful for home health nurses and other psychiatric nurses to inform patients of the duty to report during the initial assessment [12].

Informed consent
Informed consent is not simply the signing of a form. Informed consent is the process by which information is shared about treatment options, risks, and alternatives [13]. Nurses often are involved in this process, and it may involve written information and the patient being asked to sign a form. The patient must have the capacity to understand the proposed treatment, have adequate information to make a decision, and have the option to make a choice [14].Legal Risks with Non-English Patients Essay

Treatment of minors
Minors are considered legally incompetent to make treatment decisions for themselves, and parents or legal guardians have the right to make such decisions. The age of majority varies by state but is most often 18 years old. In general, persons younger than age 18 who are married or are in the military are considered emancipated minors. Some states also consider minors with children to be emancipated. Some jurisdictions make exceptions for minors to consent for certain types of treatment, such as substance abuse, prescribing of contraceptives, treatment for sexually transmitted diseases, and suicide prevention [15].Legal Risks with Non-English Patients Essay

The Association of Child and Adolescent Psychiatric Nurses (ACAPN), a division of the ISPN, published a position paper regarding the rights of children in treatment settings [16]. Some statements selected from the paper follow:

•ACAPN opposes the abduction and involuntary transport of children to facilities for confinement unless such measures have been clinically justified in specific, operational terms by a licensed mental health professional with the legal authority to do so.
•Before the child’s admission, a copy of his or her rights (written in clear and understandable language) should be given to the child and explained verbally by a licensed staff member.Legal Risks with Non-English Patients Essay
•ACAPN opposes any prohibition or barriers to communication imposed by any facility, including rigid and restrictive visiting policies, policies that restrict parents from visiting their children, limited access to telephones, and barriers to mail service.
•ACAPN opposes any and all punitive measures. Children should not be physically restrained (restriction of body parts by device or by placement in an isolated, locked room) unless every avenue of prevention of harm to themselves or others has been exhausted [16].
Documentation
Documentation is the primary method by which the record of treatment, progress and response, and patient care is communicated. Additionally, for purposes of internal and external auditing, the medical record is typically the sole informant. In a court of law, the medical record defines what occurred in treatment. Documentation is an important nursing responsibility that must be thoughtful and complete.Legal Risks with Non-English Patients Essay

In a study that examined the documentation of registered nurses on the medical records of hospitalized psychiatric patients, 20% of the entries were found to be pejorative and filled with jargon, words and phrases such as manipulative, visible on the unit, and limit testing. Documentation must be more than simply a “ritual.” Documentation must be based on solid assessment and provide evidence to support the observations and interpretations [17].

Many medical records today are computerized or have checklists that limit the possible responses. Although these methods often make nurses’ work easier, they may be too restrictive to allow for complete and individualized documentation, and additional entries may be necessary. In any complex case in which liability may be increased, the nurse should document as though describing the situation to a colleague or “thinking aloud for the record,” thoroughly describing the nurse’s assessment and thought process for decision making [6].Legal Risks with Non-English Patients Essay

Supervision of patients
One of the key responsibilities of psychiatric nurses is to maintain safety within the patient setting. The safety of patients with mental illness also must be maintained in settings such as the emergency department. Often, in inpatient and other settings, nonlicensed personnel provide and document monitoring of patients, yet the responsibility ultimately lies with the nurse to ensure that proper supervision occurs. The nurse is responsible to carry out procedures and physician’s orders regarding patient safety and supervision. An institution may have policies regarding opposite-sex staff supervising patients in certain situations and specific procedures for monitoring patients at risk for self-harm, such as constant observation. Claims of inadequate staffing do not justify failure to follow procedure [18]. In addition, nurses must assess potentially dangerous situations and vulnerable patients (eg, a patient who is disoriented and agitating peers) and make reasonable plans to control the risk. Patient supervision, removal of unsafe objects, documentation, communication among staff members, and treatment planning are some methods of addressing these concerns. Institutions are responsible for ensuring that employees have adequate competence, skills, and training to maintain safety [19]. Institutions have been found liable for failing to supervise patients properly in situations that have resulted in self-inflicted injury to the patient [18, 20]. Nursing staff also may be charged with failure to provide adequate supervision in cases in which patients are assaulted by other patients or staff members.Legal Risks with Non-English Patients Essay

Forensic psychiatric issues (pertaining to the court system)
Civil commitment process
Civil commitment laws allow the state to hospitalize a person involuntarily. A century ago, it was possible to have a family member hospitalized with little or no justification as long as a physician authorized it, and not until the 1960s and 1970s were specific legal criteria for such hospitalization established [21]. Today’s commitment laws are based on the “dangerousness standard,” under which someone who is mentally ill can be involuntarily hospitalized when he or she is unable to care for himself or herself or when he or she is a danger to self or others. This process allows for family members or the police to seek commitment for persons with mental illness who are imminently dangerous yet refuse hospitalization. Civil commitment laws have changed dramatically, and current trends toward supporting the civil liberties of the mentally ill resulting in deinstitutionalization have been blamed for increased homelessness, morbidity, and criminalization of the mentally ill [22].Legal Risks with Non-English Patients Essay

Civil commitment laws, including the specific criteria for commitment, vary from one state to another and include common criteria, such as the person must have a mental illness, must lack the judgment to make decisions regarding hospitalization, and must be an immediate risk to harming self or others. Treatment is usually inpatient, although some jurisdictions allow outpatient civil commitment. Courts have ruled that nurses should not be found liable for holding a hospitalized patient who is later found to be wrongfully committed [20].

Competency
Within the criminal justice system, legal competency to stand trial is based on a defendant’s ability to understand legal charges being made and to aid an attorney in his or her defense. These criteria are referred to as the Dusky Standard based on a 1960 Supreme Court case [23]. A person who lacks such capacity because of a severe mental illness or because of a severe developmental disability is considered legally incompetent. Defendants are considered competent unless there is some question about this presumption, usually raised by the person’s behavior (eg, if the person exhibits bizarre behavior). Incompetence is not regarded as a static condition, and if and when competence is reestablished, the person resumes the criminal process [24, 25].Legal Risks with Non-English Patients Essay

Other than competency to stand trial, there are many acts for which a patient might be considered competent within and outside of the criminal justice system. For example, a patient agreeing to take medication must be able to understand the treatment and alternatives and be able to communicate a choice to be considered competent [14].

Insanity defense
The defense of insanity is used in the criminal process when a person is considered so severely mentally ill as to lack free choice or rationality at the time of committing an illegal act. In other words, the person did not know right from wrong and did not make a conscious decision to commit the crime. Not all persons who are mentally ill meet the criteria for the insanity defense, and the criteria have some variation among jurisdictions. Persons found to be legally insane do not receive prison terms but typically are remanded to treatment in forensic hospitals. State laws vary regarding the criteria, disposition, and release from treatment regarding the insanity defense [22].Legal Risks with Non-English Patients Essay

The insanity defense has received a great deal of recent attention because of the 2002 trial of Andrea Yates. Yates was found guilty in the drowning deaths of her children despite unsuccessful arguments by her attorneys for a finding of innocence by reason of insanity. Yates had a long-standing history of depression and psychosis and was under the care of a psychiatrist. The prosecution did not dispute that Yates was mentally ill but argued that she knew it was wrong to drown her children yet made a decision to do so anyway [26]. The Yates conviction prompted the American Psychiatric Association to release a statement regarding concerns about how society and the legal system deal with severely mentally ill persons [27].

Legal issues in advanced practice
Advanced practice psychiatric nursing involves additional legal concerns, discussion of which is beyond the range of this article. The scope of practice for the advanced practice registered nurse and requirements for the use of protocols, supervision, and other limitations vary widely from state to state and are outlined in each state’s nursing practice act. The journal Nurse Practitioner publishes a legislative update on the status of advanced practice registered nurses across the United States each January [28].Legal Risks with Non-English Patients Essay

Advanced practice registered nurses are exposed to additional liability through prescriptive authority, billing practice, and the unique nurse-patient relationship of therapy [29]. Many state nurse associations have resources dedicated to advanced practice registered nurses. The Association of Advanced Practice Psychiatric Nurses, based in the Pacific Northwest, may be another source of information for advanced practice registered nurses.

Legal trends
Courts and regulations tend to favor the individual rights of patients over the rights of society as a whole, and this trend most likely will continue. Treatment must reflect the individual needs of patients as well. In a case in New Jersey, a jury found unanimously for a patient against a health care provider on the charge that the patient had received substandard care because of a language barrier. The jury also found for the patient that his health and well-being had been damaged. The patient could speak but not read English, and he was asked to complete some forms in English. A receptionist helped him complete the forms, and information provided was inaccurate, which later led to patient injury. This case did not involve a psychiatric patient; however, the circumstances might be applied easily to the mental health setting, in which communication is so crucial to all aspects of treatment [30].Legal Risks with Non-English Patients Essay

To improve communication when nurses do not speak the patient’s language, translators may be available to assist staff, and forms may be available in multiple languages. Relatives may be asked to translate for patients (or vice versa), although this raises concerns about confidentiality and accuracy of translation. For hospitalized patients, there may be times when none of the staff present are proficient in the patient’s language. It is difficult, at best, to meet the standards of acceptable psychiatric care with such substantial barriers to communication. With many patients in the mental health system who speak English as a second language or not at all, the potential for similar language barriers and cultural barriers exists for psychiatric nurses, and this is an area in which further litigation may occur.Legal Risks with Non-English Patients Essay

An area of increasing concern among physicians is providing care for patients with limited abilities to speak English.1,2 This concern is warranted by—among other factors—logistical uncertainties in treating patients who may not understand physician instructions, the risk of potential litigation in treating such patients, and the fiscal impact on medical practice of treating such patients.1,2
Limited English proficiency (LEP) is a term used to describe individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English.3 Currently, 38 million people in the United States—roughly 12.5% of the population—are foreign born. As this number grows,4 the odds increase that LEP patients will be encountered in outpatient and surgical settings, as well as in hospital and emergency department beds. According to the 2001 Supplementary Survey by the US Census Bureau,5 33% of individuals aged 18 to 64 years who speak Spanish, and 22% of individuals in this age category who speak Asian or Pacific Island languages, reported that they spoke English either “not well” or “not at all.” Of course, not all patients who primarily speak non-English languages are foreign-born. Some of these patients may be US-born but live in relatively isolated ethnic enclaves. Legal Risks with Non-English Patients Essay
To eliminate healthcare barriers experienced by the growing number of LEP patients, it is imperative that physicians and office staff comprehend federal, state, and privatesector requirements regarding LEP patients. It is also important for physicians to assess the multicultural populations living within their practices’ geographic areas and to incorporate appropriate interpretation and translation services within their practices.6
Healthcare Barriers
There are many important and practical reasons for patients and physicians to communicate effectively and to understand each other. For example, physicians need to obtain accurate medical histories, and patients need to understand physician instructions and become an integral part of the patient-physician partnership. More often than not, LEP patients are hampered in these efforts because of language barriers. These barriers are likely to result in fewer visits to providers and delays in preventative services, fostering acquisition and exacerbation of chronic conditions and deterioration of acute symptoms leading to hospitalization.7-11
Unresolved linguistic and cultural barriers can contribute to misunderstandings among patients regarding diagnosis, treatment, and self-care options.12 Other implications of these barriers can include inappropriate use of medications,13 lack of informed consent for procedures,14 longer hospital stays,15 poor patient satisfaction,7,8,16-18 and poor comprehension by patients of follow-up care plans.19,20 Temporary or permanent confusion, fears, and concerns among the rapidly expanding LEP population are compounded by difficulties these individuals have in accessing healthcare resources and providers.21-24
Federal and State Regulations Legal Risks with Non-English Patients Essay
A number of federal and state regulations are designed to protect LEP patients from encountering healthcare barriers. All providers who receive federal funding must abide by Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin.25 In 2000, President Bill Clinton issued Executive Order 13166, which reinforced the need for providers and hospitals that receive federal funding to render appropriate access and services to LEP patients.26 In addition, the Standards for Culturally and Linguistically Appropriate Services (CLAS)27 were established in 2001 by the Department of Health and Human Services’ (HSS) Office of Minority Health. These LEP-related standards include the following requirement:
Health care organizations [that receive federal funding] must offer and provide language assistance services, including bilingual staff and interpreter services, at no cost to each patient/consumer with limited English proficiency at all points of contact, in a timely manner during all hours of operation.Legal Risks with Non-English Patients Essay

A major source of confusion for many physicians is whether this HHS guidance applies to them. To clarify, the HHS CLAS standards apply to any entity receiving funds from the HHS, including physicians who participate in Medicare Part A or federally funded clinical trials or who provide treatment to certain other patient categories.27 Physicians enrolled only in Medicare Part B and who do not otherwise receive federal funds are not subject to the HHS requirements.28
The CLAS standards also apply to patients needing services in American Sign Language and those covered by the Americans With Disabilities Act.27,29 Figure 1 shows a comprehensive list of the CLAS standards.
Individual states vary in their quantity and scope of laws related to caring for LEP patients. All states have antidiscrimination laws that at least broadly encompass Title VI, Executive Order 13166, and the CLAS standards.27 In New Jersey, mandatory cultural competency training, including content for treating LEP patients, is required for all physicians and podiatrists before relicensure.30-33 Curricular integration of cultural competency is required in all New Jersey medical schools.30-33 California30,34 and Washington State30,35 require varying degrees of cultural competency training or continued medical education regarding LEP patients before physician relicensure. Many other states currently have legislation in various stages of development involving integration of cultural competency and LEP proficiency training for healthcare providers.30,36 Legal Risks with Non-English Patients Essay
In addition to federal and state laws, the American Osteopathic Association,37 Accreditation Council for Graduate Medical Education,38 and American Board of Medical Specialties39 have all mandated the implementation of core competencies in medical training programs. These requirements include competencies in communication skills and professionalism, such as sensitivity to patient age, culture, disability, and sex, and recognition of cultural diversity among patient populations in served communities. The National Board of Osteopathic Medical Examiners has issued a report recommending the inclusion of core competencies in the Comprehensive Osteopathic Medical Licensing Examination (COMLEX-USA).40 The Joint Commission is currently developing accreditation requirements to advance effective communication and cultural competence within the medical environment, including reducing language barriers in patient care.41 Legal Risks with Non-English Patients Essay
These many efforts, however, have not been sufficient to resolve language barriers for LEP individuals. In particular, awareness of language law among providers has not been associated with use of professional interpreters by providers.42 This finding suggests that providers may still not be aware of their legal obligations to offer language access services to their LEP patients. It may also indicate that providers continue to use untrained interpreters, such as patients’ family members and friends. Although federal policy for the past 40 years has mandated that meaningful language access be provided to LEP patients, this requirement has resulted in less than favorable outcomes.42 There is much room for raising awareness of this issue, as well as for creating more rigorous guidelines and enforcement mechanisms.
To determine the extent of LEP patient needs, the HHS suggests that all physicians who receive federal funding conduct LEP assessments of their practices, focusing on the following factors43:
the number or proportion of LEP persons eligible to be served or likely to be encountered by the program, activity, or service provided by the [federal funding] recipient
the frequency with which LEP individuals come in contact with the recipient’s program, activity, or service
the nature and importance of the recipient’s program, activity, or service
the resources available to the recipient and [the recipient’s] costs
Although no finite numbers or time frames are recommended in the HHS guidelines,43 the following is noted about these four factors and a physician’s obligation to provide services to LEP patients: Legal Risks with Non-English Patients Essay
As clarified by the guidance, the extent of Title VI obligations will be evaluated based on a four-factor test including the nature or importance of the service. In this regard, the guidance points out that documents deemed “vital” to the access of LEP persons to programs and services may oftenhave to be translated. Whether or not a document (or the information it contains or solicits) is “vital” may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. Legal Risks with Non-English Patients Essay