Legal and Practical Implications of the Limited-English Speaking (LEP) Patient

1. Legal and Practical Implications of the
Limited-English Speaking (LEP) Patient
Gem P. Daus, M.A.
Executive Director, NCHIC
March 18, 2011
UNC School of Dentistry
4th Annual Risk Management Seminar
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2. I. Understand terminology & what an interpreter does
II. Understand the role of NCIHC
III. Understand the legal & other requirements for
providing care to a limited-English proficient patient
IV. Understand the cultural differences that can and do
impact care
V. Considerations for an effective interpretation and
translation program in your dental practice.

3.  Limited-English Proficient (LEP)
 Bilingual
 Translation
 Interpreting
 Sight translation

4.  Limited-English Proficient
◦ a legal concept referring to a level of English proficiency that
is insufficient to ensure equal access to public services
provided in English without an interpreter [ASTM]
 Bilingual
◦ a person who has some degree of proficiency in two
languages. A high level of bilingualism is the most basic of the
qualifications of a competent interpreter but by itself does
not insure the ability to interpret.

5.  Translation
◦ the conversion of a written text into a corresponding written
text in a different language.
 Interpreting
◦ the process of understanding and analyzing a spoken or
signed message and re-expressing that message faithfully,
accurately and objectively in another language, taking the
cultural and social context into account [ASTM].
◦ Simultaneous, consecutive, relay (3 languages)
◦ Face-to-face, telephone, remote video

6.  Sight translation
◦ oral rendition of written text from one language into
another language, usually done in the moment
 Consecutive Interpreting
◦ oral rendition of two language with pauses at appropriate
stopping places to allow for interpreting
 Simultaneous Interpreting
◦ oral rendition of language with a short lag time as person is
speaking
 Dual-role interpreter
◦ a bilingual employee who has been tested for language
skills, trained as an interpreter, and assumes the task of
interpreter
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 Interpreting is a triadic job
provider + LEP + interpreter

8.  Facilitate communication between individuals
 Interpreter says exactly what is being said by both
parties
 Transparent, must interpret everything that is being
 Uses 3rd
person, except when working with children
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9.  Converts language by meaning, uses same tone, level
of vocabulary (register)
 Clarifier or broker if s/he feels there may be a barrier
to understanding
 Stops session to ask clarification or for speed
 Pre-session with provider and LEP
 Cultural broker, purpose is to facilitate impact
culture may have on questions/responses
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10.  familiarity with regionalisms and slang in both
languages;
 ability to identify differences in meaning due to
dialects/regionalisms to ensure effective and
accurate message conversion;
 ability to communicate in all registers/levels of
formality;
 understanding of colloquialisms and idiomatic
expressions in all working languages;
 working knowledge of anatomy and physiology;
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11.  extensive knowledge of the vocabulary and
terminology related to diagnosis, prevention,
treatment and management of illness and disease;
 thorough understanding of key concepts in health
care such as confidentiality, informed consent and
patients’ rights;
 thorough command of the vocabulary related to the
provision of health care in both languages.
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Competencies (2)

12.  Active listening skills
 Message conversion skills
 Clear and understandable speech delivery
 Memory
 Note taking
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14.  Telephonic or Over-the-Phone-Interpreting (OPI)
 Video relay interpreting
◦ Useful for Languages of Lesser Diffusion
◦ Useful for speed
◦ Not as personal
◦ Not an option in some circumstances (ambulances)
 Face-to-face interpreting encounter in trauma cases
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15. I. Understand terminology
II. Understand the role of NCIHC
III. Understand the legal requirements for providing
care to a limited-English speaking patient
IV. Understand the cultural differences that can and do
impact care
V. How to construct, monitor and maintain an
effective interpretation and translation program in
your dental practice.

16.  1994 – first conference on medical interpreting (Seattle)
 2000 – incorporated as 501(c)3
 Multidisciplinary membership:
Medical interpreters Interpreter service coordinators
Educators/Trainers Clinicians
Health Care Personnel Policy makers
Advocates Researchers
 Mission: to promote and enhance language access in
health care in the United States.
 www.ncihc.org info@ncihc.org
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17. 2004
National Code of Ethics for Interpreters in Health Care
– guiding principles and values governing conduct;
shoulds
2005
National Standards of Practice for Interpreters in
Health Care – what and how a competent interpreter
does (accuracy, confidentiality, impartiality, respect,
cultural awareness, role boundaries, professionalism,
professional development, advocacy)
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18.  Objective
◦ To acknowledge the inherent dignity of all parties in the
interpreted encounter
 Code of Ethics
◦ The interpreter treats all parties with respect.
 Standards of Practice
◦ The interpreter promotes direct communication among all
parties in the encounter.
◦ For example, the interpreter may tell the patient and provider
to address each other, rather than the interpreter.

19.  Provide consistency in performance of role, leading
to a dangerous potential for incomplete and
inaccurate communication
 Make health care providers and interpreters aware
of the clinical and financial ramifications from using
unqualified interpreters
 Provide guidance when addressing ethical dilemmas
during an interpreting encounter
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20. 20
2001-2010
Published 13 working papers
Open calls/Webinars:
Mental Health Interpreting
Vicarious Trauma/Interpreter Self-Care
Best Practices
Certification
State policies (March 18, 2011, 1:00 p.m. EST)

21. 2011
National Standards for Healthcare Interpreter Training
Programs
Collaborate with the Certification Commission for
Healthcare Interpreters (CCHI) on a national
certification
http://www.healthcareinterpretercertification.org/
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22.  Assure that the ethics and protocols identified as
fundamental by the interpreting community are
reflected in standard-based training
 Help assure consistency and accountability in
healthcare interpreter training programs
 Define the role Standards of Training will play in
national certification
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23. I. Understand terminology
II. Understand the role of NCIHC
III. Understand the legal requirements for providing
care to a limited-English speaking patient
IV. Understand the cultural differences that can and do
impact care
V. How to construct, monitor and maintain an
effective interpretation and translation program in
your dental practice.

24. A. Civil Rights Act of 1964, Title VI
B. Executive Order 13166
C. HHS OCR Guidance
D. CLAS Standards
http://www.lep.gov/faqs/faqs.html

25.  Individuals who do not speak English as their primary
language and who have a limited ability to read, write,
speak, or understand English.
 Anyone who answers less than “very well” to the
question on the U.S. Census Survey: How well do you
speak English?

26. * Language = “national origin”
“No person in the United States shall, on the
ground of race, color, or national origin, be
excluded from participation in, be denied the
benefits of, or be subjected to discrimination
under any program or activity receiving federal
financial assistance.” 42 U.S.C. § 2000d

27.  Federal courts and agencies have interpreted
discrimination by national origin to include language.
In other words: If someone discriminates
against you because you can’t speak
English, then it is a violation of your civil
rights.

28. “By the authority vested in me as President by the
Constitution and the laws of the United States of
America…it is hereby ordered as follows:…
“…each Federal agency shall … implement a system by
which LEP persons can meaningfully access those
services consistent with, and without unduly burdening,
the fundamental mission of the agency.”

29.  President Clinton issued it in August 2000.
 President Bush re-affirmed it during his
administration.
 President Obama reaffirmed it Feb 7, 2011

30. Federal agencies must:
 Plan for their own programs to meet Title VI
standards
 Issue LEP guidances to their grantees
It makes federal agencies plan for meaningful
language access to their programs and
activities.

31. Federal agencies must make sure that:
 Federal fund grantees meet Title VI standards
 Community members and organizations get a
chance to speak to what the language access
needs are

32. “No person may be subjected to discrimination
on the basis of national origin in health and
human services programs because they have a
primary language other than English.”
- Notice regarding language (1980)

33.  The Guidance is a document that sets a standard
for how to comply with Title VI.
 It does not establish any new requirements or
mandates

34. A recipient* is any public and private entity receiving
federal funds, including:
State, county, and local health and
welfare agencies
Hospitals and clinics
Nursing homes
Senior Citizen Centers
Managed care organizations
Mental Health Centers
Other programs that receive federal
funds
*When the Guidance says, “recipient” , it
means a “recipient of federal funds”.

35. A recipient must:
 Provide language assistance to LEP persons, to make
sure that they have equal access to programs and
services.
 Apply the LEP guidance to all the programs in the
recipient’s organization (even if HHS funds only directly
support one program).

36. A recipient cannot do the following towards LEP
persons:
• Limit the scope or lower the quality of their
services
• Delay the delivery of their services unreasonably
• Limit their participation in a program
• Require them to provide their own interpreters or
pay for interpreters.

37.  OCR uses a 4 factor analysis to “test” if a recipient
is complying with Title VI. The factors are:
◦ Number or proportion - How many LEP persons
are eligible to be served, or likely to be encountered?
◦ Frequency – How often do LEP persons come in
contact with the program?
◦ Nature and importance – How important is the
program, activity, or service to people's lives?
◦ Resources – What resources are available to the
recipient? What will the costs be?

38.  Recipients should make sure patient knows that
an interpreter is available for free.
 Possible options for interpreting services include:
◦ Bilingual staff Staff interpreters
◦ Contract interpreters Volunteer interpreters
◦ Telephone language line
 Recipients must not require a patient to use
friends, family or minor children for interpretation

39. Interpreters should:
◦ Be proficient in English and the non-English language.
◦ Know special terms (such as medical, legal jargon), as
necessary
◦ Respect a patient’s rights to confidentiality and to
impartial interpreters
◦ Understand the role of interpreter (such as ethics and
practices).

40.  If the recipient repeatedly uses a written material
with LEP persons, it should translate that material
into non-English languages that are regularly
encountered.
 Recipients should translate or communicate
information in vital documents.

41.  Vital documents are those that affect one’s
legal rights or obligations. For example:
◦ Application and enrollment forms
◦ Letters or notices re eligibility or changes in
benefits
◦ Anything requiring a response
◦ Patient consent forms

42. The standards regarding
language access services
(numbers 4 through 7) are
based on Title VI!

43.  The Office of Minority Health (OMH) issued these standards
in 2000.
 They are the first national standards for culturally and
linguistically appropriate services (CLAS) in health care.
 OMH designed the Standards to help organizations provide
culturally and linguistically accessible services for all.
 All patients should receive fair and effective CLAS and
treatment

44.  Offer and provide language
assistance services, including
bilingual staff and interpreter
services.
Provide these services:
 at no cost to each LEP
patient/consumer,
 at all points of contact,
 in a timely manner, during all
hours of operation.
 Make sure interpreters and
bilingual staff are
competently providing
language assistance to LEP
patients/consumers.
 Not use family and friends to
provide interpreting services
(unless the patient/consumer
makes a specific request).
Health care organizations should…

45.  Provide both verbal offers
and written notices to
patients/consumers in their
preferred language.
 These notices should inform
patients/ consumers of their
right to receive language
assistance services.
 Make available easy-to-
understand patient-related
materials.
 Post signs in the languages of
the commonly encountered
groups, and/or groups
represented in the service
area
Health care organizations should…

46. I. Understand terminology
II. Understand the role of NCIHC
III. Understand the legal requirements for providing
care to a limited-English speaking patient
IV. Understand the cultural differences that can and do
impact care
V. How to construct, monitor and maintain an
effective interpretation and translation program in
your dental practice.

47. I. Understand terminology
II. Understand the role of NCIHC
III. Understand the legal requirements for providing
care to a limited-English speaking patient
IV. Understand the cultural differences that can and do
impact care
V. Considerations for an effective interpretation and
translation program in your dental practice.

48.  Explain to the LEP how the interpreter will be used
 Speak directly to the LEP
 Use regular volume
 Keep a pace easy for interpreter to follow
 Keep dialogue short (helps accuracy)
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49.  Make eye contact; use first person and speak directly
to the LEP
 Avoid slang; explain terminology that might be hard to
understand
 Have patient sign waiver if they refuse an interpreter
 Have interpreter stand-by if LEP refuses an interpreter
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50.  Ask LEP to bring own interpreter
 Ask another patient to interpret
 Ask a family member to interpret
 Ask a minor to interpret
 Ask a non-qualified staff member to interpret
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51.  No set interpreter-to-patient ratio
 One example
◦ For dental, the beginning (when the plan for the encounter is
laid out) and end of the encounter (when findings are
presented)
◦ At the beginning, the provider and patient set some gestures
to help them move through the procedure smoothly.
◦ If there is an urgent need to communicate during the session,
the dental assistant simply goes down the hall and gets the
interpreter to come back to that area for a bit and provide
language support.

52.  On-site
◦ New patient visit
◦ Exams
◦ Children 7 and under
◦ First time a patient has dental work done
◦ Difficult procedures
◦ Highly anxious patients
 Remote
◦ established patients on a treatment plan

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54.  Gem P. Daus
 gdaus@ncihc.org
 info@ncihc.org
 www.ncihc.org
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