Best methods for increasing medical translators for limited English proficient patients: the carrot or the stick?

AuthorHeine, Paula
  1. INTRODUCTION II. PROBLEMS OF LIMITED ENGLISH PROFICIENT PATIENTS III. HISTORICAL OVERVIEW OF TITLE VI A. Enforcement of Title VI B. History of Title VI and Intentional Discrimination in Health Care C. History of Title VI and Disparate Impact in Health Care IV. THE CONTROVERSY REGARDING THE COURT'S HOLDING IN ALEXANDER V. SANDOVAL V. REASONS GREATER PRIVATE ENFORCEMENT UNDER TITLE VI WOULD NOT ASSIST "LEP" PATIENTS IN RURAL AMERICA A. Health Care Struggles in Rural America B. The Growing Number of LEP Patients in Rural America C. Difficulties Successfully Suing for Disparate Impact in Medical Cases D. Current Remedies Available for Disparate Impact Medical Cases VI. RECOMMENDATIONS A. Reimburse Physicians for Medical Translators B. Increase Spending for Non-profit Organizations that Assist LEP Patients C. Affirmative Action VII. CONCLUSION I. INTRODUCTION

    Dr. Jeffery Kerr's situation exemplifies the current state of physicians who accept Medicaid and Medicare in rural communities and are struggling to keep their doors open in light of new cuts in federal and state spending. (1) He is currently one of the only physicians in the rural town of Houston, Missouri, who will see patients in a nursing home because a majority of the residents depend on Medicaid or Medicare to pay for their health care. (2) Dr. Kerr is worried that he, like other physicians before him, may have to stop seeing these patients or move to a different location because of reduced Medicaid reimbursements by the state. (3)

    Like other physicians in town, Dr. Kerr feels that the current payments for Medicaid patients are break even at best. Dr. Honeywell, another physician who accepts both Medicare and Medicaid patients stated, "I'd be better off just sitting at home." (4) This sentiment stems from the fact that it costs physicians, like Drs. Honeywell and Kerr, forty-eight dollars an hour in overhead expenses to treat an average of three patients, while Medicaid currently reimburses only twelve dollars per patient, minus the two dollars and ninety-one cents it costs to submit a claim through mail. (5)

    Because Drs. Kerr and Honeywell accept Medicaid and Medicare, they are subject to the guidelines of the Department of Health and Human Services for the treatment of patients who are deemed to be limited English proficient ("LEP"). (6) These guidelines require physicians to hire trained medical interpreters for their LEP patients, and pay for these translators out of their own pockets. (7)

    In August 2000, President Clinton issued an executive order mandating every federal funded program to prepare a plan to increase access to the programs for LEP individuals. (8) Dr. Kerr will have to do the following in order to comply with the plan developed by the Department of Health and Human Services: 1) assess the needs of the community where he is practicing to determine the number of LEP patients; 2) develop a comprehensive written guideline on ways to ensure meaningful communication to LEP patients; 3) train his staff on the policy and ways to carry it out; and 4) vigilantly monitor his program, including reassessing the needs of the community in a timely manner. (9) In order to satisfy the language access requirement, Dr. Kerr must also pay for medically trained translators out of his own pocket for all of his LEP patients, not just those patients enrolled in a government sponsored program like Medicaid or Medicare. (10)

    Private physicians struggle to provide translators for patients, especially in rural areas like the one in which Dr. Kerr practices. Translators cost anywhere from thirty dollars to four hundred dollars depending on such factors as the time needed to translate, whether or not the translator is trained as a medical translator, and the language that is being translated. (11) Telephone language lines, which provide translation over the phone through a dial up service, costs providers an average of two dollars and fifty cents ($2.50) per minute. (12) There is also the price of the extra personnel time that is required to develop, conduct training, and administer the physician's LEP program. Additional costs would include the following: researching the needs of limited English proficient patients in an area; translating medical literature; evaluating the plan; and reassessing the needs of the community to ensure the program's success.

    Advocates of patients with LEP argue that there is a need for greater enforcement of existing guidelines, including adding a private right to sue. (13) However, this will not assist LEP patients in rural areas where physicians simply cannot afford to follow these guidelines. More money needs to be spent on programs that already have been proven to be successful in these areas without placing additional burdens on physicians.

    Part II of this article looks at the difficulties that patients who are limited in their English proficiency face in health care systems. Part III examines the history of Title VI and its use to end discriminatory practices in the health care system. Part IV analyzes the most recent and controversial Supreme Court decision regarding a disparate impact case brought under Title VI. Part V examines the limits of a private right to sue for assisting LEP patients, and Part VI presents some better solutions to this difficult problem.

  2. PROBLEMS OF LIMITED ENGLISH PROFICIENT PATIENTS

    In the movie Lost in Translation, an American actor is hired to shoot a whiskey advertisement for a Japanese company, and a translator is used for the filming. (14) After the director gives an animated, long-winded speech, the translator interprets his direction to the actor with only two words: "more intensity." (15) While this was a comical part of the film, in the medical world the results of mistranslation can be deadly.

    One instance where mistranslation can be deadly for patients who are limited English proficient ("LEP") is when a physician attempts to diagnose a patient. (16) Often, physicians rely on hand signals or gestures to figure out what is wrong with a LEP patient if a translator is not available. (17) This reliance leads physicians to mistake symptoms of one disease for another and they may order incorrect treatments as a result. (18) For example, in one case, a thirteen-year-old Hispanic girl, who was not English proficient and did not have an interpreter, died of a ruptured appendix. (19) The treating physician gave the girl a pregnancy test, mistakenly believing this was the cause of her stomach pain; the girl later died of a ruptured appendix. (20) Had the physician been able to better communicate with the patient, it is possible that the right test could have been ordered, and she would not have died. (21) Cases like this have raised awareness about the lack of qualified medical interpreters for LEP patients.

    Sometimes LEP patients are forced to use translators who are not medically trained leading to other problems in getting adequate medical treatment. (22) For example, some patients have their children or family members translate for them. Unfortunately, children make inadequate translators because "they are prone to omissions, additions and guessing." (23) Using family members as translators can also result in confidentiality issues. (24) A patient may not divulge important information to a physician when a translator is a family member because of privacy concerns, and family members are less likely to be trained with medical translation and may not know terminology that is specific to the medical field. (25) Family members may even censor the information they are told by the physician when they substitute their own judgment for that of the doctors, "such as deciding grandma doesn't need to know she's dying." (26)

    A recent study in the Journal of Pediatrics found that medical translators make a large number of errors, an average of thirty-one per session, with the most serious errors being made by non-professionals. (27) These errors have been classified as omission, addition, substitution, editorialization, and false fluency. (28) Omission is the most common error, accounting for about fifty-two percent of the errors in the study. (29)

    According to the 2000 Census Bureau, almost eighteen percent of American households speak a language other than English at home, and eight percent of Americans speak English less than very well. (30) Nineteen million Americans are considered to be limited in English proficiency. (31) The growing number of non-native English speakers in America will greatly increase the need for medical translators in the future. For example, the Latino population is expanding at a rapid pace; projected to increase to a quarter of the U.S. population by the year 2050. (32)

  3. HISTORICAL OVERVIEW OF TITLE VI

    A background of Title VI is needed in order to see the larger picture of how difficult it is to rely on physicians to privately fund medical translators. (33) While this law has been successful in eradicating the most blatant forms of discrimination in health care settings, it has been only moderately successful in ending practices that are neutral on the surface but still have a discriminatory effect.

    Title VI prohibits federal agencies from discriminating against any person for a number of reasons including national origin, which includes discriminating against a person for speaking another language because language is closely associated with national origin. (34) Any private physician receiving federal funds is covered under the Act. (35) A vast number of private physicians accept Medicaid and Medicare and are prohibited from discriminating against patients because of their race, color, or national origin under the Act. (36) Title VI defines discrimination in two ways: 1) when a person excludes another from participation in a federal program or the benefits of the program because of their race, color, or national origin (disparate treatment); and 2) when an...

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