According to the United States census taken in 2000, there are 44 milion persons who speak a language other than English at home, and over 19 milion of these persons- 7.5 percent of the total U.S. population- classify their English-speaking ability as "less than 'very well''. See U.S. Census Bureau, American FactFinder, Profile of Selected Social Characteristics: 2000, at:
http://factfinder.census.gov/servlet/OTTable?- bm=y&-geojd=01 OOOUS&-quame=ACS- C2SSEST - GOO- OT02&-ds_name=ACS- C2SS_EST - GOO_. 

It is likely that every health care provider in the United States has treated, or wil treat, one of these persons. The Department of Health and Human Services ("DHHS") defines these persons as having a Limited English Proficiency ("LEP").

Federal law requires all federally funded health care providers to provide meaningful health care access to LEP persons. These laws apply not only to hospitals and medical clinics, but also to nursing homes, home health agencies, managed care organizations, universities with health or social service research programs, hospitals, individual physicians and other health care providers. See generally, Questions and Answers Regarding the Department of Health and Human Services Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, at http://ww.hhs.gov/ocr/lep/ finalproposed.html. All providers receiving federal money (such as Medicare or Medicaid) must have policies in place that conform to the federal LEP guidelines. If a health care provider's patient has a limited ability to speak English, these federal guidelines provide that the LEP patient may be entitled to receive language assistance-in the form of oral interpretation or written translationfor medical treatment.

Beyond the federal laws, there are ethical and legal reasons for health care providers to comply with these policies and strive to provide health care access to LEP persons. This article explores the background of the federal LEP regulations, the diffculties faced by LEP patients when seeking medical treatment, and with respect to physicians, the ramifications on informed consent when providing health care to LEP patients. Finally, this article gives recommendations for implementing strategies that wil not only assist health care providers in their relationships with LEP patients, but also wil assist in compliance with federal LEP policies.

Federal LEP Requirements

Title VI of the Civil Rights Act of 1964 provides that programs and activities receiving federal funding may not discriminate on the basis of race, color or national origin. 42 U.S.c. §2001d. Regulations that implement Title VI prohibit not only intentional discrimination, but also practices or policies that have a disparate impact based on race, color or national origin. 45 C.P.R. §80.3(b). In 1974, the United States Supreme Court held that failing to provide language assistance to LEP persons was a violation of Title VI where that failure disparately impacted a particular national origin group. Lau v. Nichols, 414 U.S. 563, 568-69 (1974) (Title VI violation based on national origin where school district failed to provide equal benefits to Chinese-speaking children who were unable to speak and understand English).

In 2000, President Bil Clinton issued Executive Order 13,166 that required all federal agencies to work with recipients of federal financial assistance in order to provide "meaningful access to their LEP applicants and beneficiaries:' Exec. Order No. 13,166,65 Fed. Reg. 50,121 (Aug. 11,2000). The Order required each agency to prepare a plan to improve access for LEP persons to federally funded programs and services. Id., see also, Enforcement of Title VI of the Civil Rights Act of 1964-National Origin Discrimination Against Persons with limited English Proficiency, Policy Guidance, 65 Fed. Reg. 50,123 (Aug. 16,2000).

With respect to health care providers, compliance with Title VI requires that those receiving federal funds may neither intentionally discriminate against, nor engage in practices that have the effect of discriminating against, persons on the basis of race, color or national origin. The Department of Health and Human Services ("DHHS"), Office for Civil Rights ("OCR") is the federal agency that implements Title VI and President Clinton's Order as it pertains to health care providers. 45 C.P.R. §80.8 (2001). Typically, the OCR attempts to obtain providers' compliance either voluntarily or informally. Id. However, if a recipient continually fails to comply with Title VI regulations, the OCR may terminate the recipient's government funding. Id. Enforcement of Clinton's Order is limited to the OCR, as private citizens cannot bring a cause of action for disparate impact under Title VI. Alexander v. Sandoval, 532 U.S. 275,293 (2001).

Shortly after President Clinton signed Executive Order 13166, DHHS published a LEP Policy Guidance to assist providers in complying with the Order. 65 Fed. Reg. 52762 (Aug. 30, 2000). However, many health care providers (including a charge led by the American Medical Association) challenged the Order because it forced them to pay for medical interpreters for LEP patients with only nominal (or no) reimbursement. See generally, Tanya Albert, Medical Interpreter Rule Faces Review, Legislative Challenge, Am. Med. News, May 21, 2001. In a letter to then-DHHS secretary Tommy Thompson, the AMA cited one case in which a doctor was forced to pay $237 for an interpreter, and reimbursed only $38 by Medicaid. Id.

DHHS revised its guidelines in 2003 to emphasize flexibility and further encourage voluntary compliance. See Revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg.47 ,311 (Sept.0, 2003); see also, Wayne J. Guglielmo, The Translator Mandate Gets Easier, Med. Econ., Feb. 6, 2004. While health care providers stil have a responsibility to provide "meaningful access to LEP persons" under the 2003 revised guidelines, DHHS recognized the need for providers to conduct individualized assessments of their ability to provide this access. To conduct this individualized assessment, the revised D HHS guidelines provided a four-factor balancing test.

Under the four-factor test recommended by DHHS, health care providers should consider:

1) the number or proportions of LEP persons eligible to be served or likely encountered;

2) the frequency with which LEP individuals come into contact with the service;

3) the nature and importance of the service to people's lives; and

4) the resources available to the federal funding recipient and costs.
68 Fed. Reg. 47,31 1.

While the first two factors are largely determined by the provider's location and surrounding population, the third factor may well tip the scales in favor of providing interpreter services where health care is involved, especialy in the case of emergency treatment. See generally, Scott Shively & Mark T. McCarty, Does the Patient Hear (and Understand) the Provider?, Health Lawyers News, June 2005, at 18.

Health care providers should assess the first and second factors by taking into account whether the provider is located in an urban or rural location, whether the population has a large number of LEP persons, the type of services provided (for example, if the provider is a specialist as opposed to a walk-in clinic or a facility with an emergency room), and whether, given the current patients, there is a general need for provision of interpreter services.

With regard to the third factor, the "nature and importance" of health care is probably to be considered high. Arguably, the need for people to access safe and affordable medical assistance is one of the highest and most important basic requirements of a community. Because the importance of health care access is so high, and because the importance of a patient's communication with and understanding of a health care provider is so high, the need for an interpreter wil likely be considered to be great in this field.

The fourth factor may require some research by the provider to determine whether there are any community services that provide volunteer interpreters, whether any affiliated health care plans or managed care organizations provide funding, the availability of private interpreters in the area and their qualifications and rates, whether existing staff members are bilingual, and what particular Medicare or private payor requirements the provider wil need to comply with in order to obtain reimbursement for professional interpreter services.

LEP services for patients may be provided either by oral interpretation or written translation. The Healthcare Insurance Portability and Accountability Act of 1996 ("HIPAX') does not require that health care providers obtain an LEP patient's authorization to disclose protected health information to an interpreter, so long as certain conditions are met. See OCR's Frequently Asked Questions, at:
 http://healthprivacy.answers. hhs. gov I cgi - bi n/h i paa. cfg/ph pI enduser Istd_ad p. ph p?p _faq id= 760.

Diffculties Faced by LEP Patients

Unfortunately, the LEP federal mandate of providing interpreter services was imposed without simultaneously allocating funding to fulfil that requirement. HHS Guidelines for LEP Patients,athttp://ww.ama-assn.org/amal pub/category/11828.html. Medicare does reimburse some interpreter costs, so long as the health care provider complies with certain requirements; otherwise, funding may be available from private sources. While funding for interpreters may be diffcult, these laws were nevertheless well-intended: to improve LEP persons' access to health care; to decrease the number and severity of misdiagnoses or medical errors; to allow for true "informed consent" and understanding of legal issues; and to increase patient satisfaction. See Assessment of the Total Benefits and Costs ofImplementing Executive Order No. 13,166, ( O.M.B. 2002), at http://ww.whitehouse.gov/omb/ inforeg/lepfinaI3-14.pdf. Without these regulations, LEP patients are left to navigate a process that, irrespective of English proficiency, can be complicated and overwhelming.

For patients with limited English proficiency, obtaining health care services can be frustrating, diffcult, and may have potentially dangerous consequences. See, e.g., Nina Bernstein, Language Barrier Called Health Hazard in E.R., N. Y. Times, Apr. 2 1, 2005. LEP patients face barriers in scheduling appointments, understanding medical forms, communicating symptoms and ailments, and comprehending diagnoses and treatment. See generally, Rose Cuison Vilazor, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, of Color and Immigrant Communities, 8 N. Y. U. J. Legis. & Pub. Pol'y 35, 41 (2004/2005). In order to communicate with a health care provider, LEP patients sometimes have a family member or friend to accompany them to their appointment to act as an interpreter.

Where the interpreter is not professionally trained (also known as an "ad hoc" interpreter), or does not know medical terminology, miscommunication frequently arises. A study published in Pediatrics in 2003 revealed that errors in medical interpretation are common, averaging 31 errors per clinical encounter between a provider and a LEP patient. Glenn Flores et al., Errors in Medical Interpretation and Their Potential Clinical Consequences in Pediatric Encounters, Pediatrics, Jan. 7, 2003. The most common error occurred where an interpreter assisting in a pediatric visit omitted information either given by the LEP parent or by the health care provider. The study recommended that given the frequency of errors (especially those made by ad hoc interpreters) and the potential negative clinical consequences, the best solution to these problems would be to provide third-party reimbursement for trained medical interpreters.

In addition to the potential miscommunications that may arise with ad hoc interpreters, LEP patients may face difficulty in asking an ad hoc interpreter to relay symptoms that are embarrassing, or that are stigmatized within their culture. Even health care providers' information may suffer with an ad hoc interpreter in the room: For instance, a provider may be reluctant to ask a LEP patient's minor child to relay information about an embarrassing side effect of a particular prescription. Other difficulties arise where the ad hoc interpreter is a family member and also the source of the injury suffered by the LEP patient, such as a spousal or child abuse situation.

Infomed Consent as It Relates to LEP Patients

For physicians obtaining informed consent from their LEP patients, there are additional reasons to avoid ad hoc interpreters and to hire third - party medical interpreters whenever possible. Although the DHHS revised guidelines do not prohibit family members or friends of the LEP patient serving as an ad hoc interpreter, such usage should be regarded with caution. It is likely that an ad hoc interpreter's understanding of medical terms is limited, and that the patient or health care provider wil miscommunicate regarding either symptoms or treatment.

Informed consent is not only an ethical duty of physicians, but also a potential legal pitfalL. Informed consent law varies from state to state, either by statute or by common law, but the principles as they apply to physicians are generally the same: Without first obtaining consent from a patient upon whom the provider intends to perform an invasive procedure, the provider may face liability. See generally, Barry R. Furrow et al., Health Law, 321-69 (2d ed. 1991).

In general, except in emergency situations where the patient is in need of immediate treatment and therefore incapable of giving consent, or in situations where the patient is mentally incompetent or a minor, the health care provider must obtain consent from the patient personally for the proposed treatment. d. In some states, if the patient is incapable of giving consent, the physician must stil obtain consent by the patient's guardian or family member. The modern trend of consent law also holds that in order to obtain valid consent, a health care provider has a duty to not only explain the diagnosis and proposed treatment, but also anyalternative methods of treatment and risks to the patient with or without treatment. Id.

Valid patient consent may be express (either orally or in writing), or may be implied by the conduct of the patient. Id. In order to be valid, the patient must have the capacity to consent to the treatment. If the patient is a minor, or mentaly il, or intoxicated, it is likely that the patient's compromised capacity would void any consent given to the health care provider. Similarly, a patient's consent likely wil be invalid where the patient misunderstands or is mistaken as to the treatment proposed by the health care provider. Id.

Where a provider is treating a LEP patient, clear communication is important to determining whether consent is valid. Health care providers treating LEP patients are vulnerable to communication mishaps that may result in vitiating a patient's consent. For example, consent may be void where the LEP patient misunderstands the health care provider's proposed treatment due to an interpreter error where the interpreter is not versed in medical terminology. Another scenario of potential invalid consent is where the diagnosis of the health care provider is mistaken or misinformed due to a LEP patient's reluctance to adequately describe symptoms in front of the patient's family member or child who is translating.

Below are several approaches that wil not only assist physicians in obtaining informed consent, but also wil allow health care providers to develop a policy to meet both the federal regulatory mandate and demonstrate a commitment to all patients' well-being.

Ideas for LEP Policy Implementation and Cultural Competency

The following suggestions for compliance can help ensure that communication Medical Liabilit and Health Care Law between the health care provider and LEP patient is at its optimum, which wil translate into more effective and appropriate care. Some services are available online, others call for policy changes within the provider's work environment, and some assistance is available depending on the surrounding community.

Bilngual Signage and Forms

Bilingual tools are one of the easiest, most economical, and readily available services to all health care providers, and they are only as far away as the nearest Internet connection. One widely utilized tool is "I speak" cards. These cards have "Mark this box if you speak..." written in various languages, and the patient can select their preferred language on the card. The card may be placed in the patient's file for the next time the patient has an appointment so that the health care provider can know to have an interpreter available, as well as provide forms in that patient's language. "I speak" cards are available at http://www.usdoj.gov/ crtcor/Pubs/ISpeakCards2004.pdf or http://www. lep.gov/ISpeakCards2004.pdf. Posting bilingual signs in the waiting and reception areas wil help facilitate communication and efficient check-in procedures. It may also be wise to have standard informed consent forms translated into various languages.

Interpreter Services

Although it is convenient for the health care provider to use a LEP patient's family member as an ad hoc interpreter, the above sections demonstrate why it is better to have a neutral third party in the form of a professional medical interpreter. The provider should keep a list of local interpreters ready for use, including contact information, pricing, medical terminology experience, and availability (whether by phone or in person). Other local health care providers may be an excellent referral source for local interpreter or translation services as welL. Some agencies, health care plans, or managed care organizations may provide interpreter services. Other sources of funding may include federal state, or county departments of health. Finally, there may be community volunteer services nearby. See, e.g., Seattle's Cross Cultural Health Care Program at http://www.xculture.org/; see also Hablamos Juntos ("We Speak Together") at http://www.hablamosjuntos.org.

Bilingual Staff

Hiring bilngual staff can have multiple benefits, from having ad hoc interpreters available if necessary, to increasing diversity in the workplace, both of which may serve to make LEP patients feel more comfortable. Some employers pay an increased salary to bilingual staff who serve as interpreters. There also may be local classes that interpreter staff can attend to learn basic medical terminology, a cost -cutting measure for the provider in the long-run.

Cultural Competency

Finally, cultural competency courses are a recommended way to ensure staff understand the difficulties facing LEP patients, and to foster communication between health care providers and their patients. Studies have shown that where a provider makes cultural competency a core institutional value, it improves the quality of care for all patients. See, e.g., Stephanie Taylor & Nicole Lurie, The Role of Culturally Competent Communication in Reducing Ethnic and Racial Healthcare Disparities, Am. J. Managed Care, Sep. 2004.

Conclusion

In terms of health care services, the worst communication is no communication. While all health care providers may not be able to afford a professional interpreter who is versed in medical terminology to translate for their LEP patients, most providers can make an effort to translate informed consent forms into various languages, print out "I speak" cards from the Internet, post bilingual signage in their facility, make efforts to hire a multi -lingual staff, and keep a directory of volunteer interpreter services in the area. When it comes to compliance with federal LEP mandates and demonstrating cultural competency, small steps should be taken in lieu of none at alL. Moreover, any steps are better than none to help provide equal, meaningful health care access to all patients.

Mary Re Knack is a member of the firm of Wiliams, Kastner & Gibbs PLLC in Seattle. Her practice includes defense litigation relating to health care, product liabilty, mass tort and civil matters. She is an active member of the DRI Medical Liabilty and Health Care Law Committee, the Washington Society of Health Care Attorneys and other professional organizations. Jennifer M. Gannon is an associate with Williams, Kastner & Gibbs PLLC in Seattle. She practices commercial litigation, focusing on health care and product liability defense. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.