Discrimination can appear in many forms. An offer of a free consult comes with the request of an interpreter. Does the healthcare provider have to comply with the request

Posted in Articles on Tuesday, August 11, 2020

No healthcare provider wants to discriminate against anyone, patient or staff. But sometimes situations arise where the appropriate action is not always clear. Consider this case:

As a promotion, a healthcare provider advertised a free consult for all individuals. A prospective patient reached out to the healthcare provider for the free consult, and during the scheduling, advised they would need an interpreter during the appointment.

The healthcare provider was unsure as to her obligation to provide an interpreter due to the cost involved, as well as the chance that the potential patient, who does not have insurance, would not show up for the consult.

Here is where the situation gets “sticky.” As a healthcare provider, you are not obligated to treat every individual who requests your services. However, as a healthcare provider, you legally cannot refuse treatment based on a reason which is unlawful or discriminatory. Two issues come to light in a situation such as this: the ADA and Section 1557 of the ACA.

The ADA (Americans with Disability Act), Title III prohibits discrimination based on disabilities. 

• Therefore, if the request is as a result of a disability, as a healthcare practitioner, you must make a reasonable accommodation, such as providing an interpreter for the patient and/or their companion.  The term “companion” includes a person who is one of the following:
  • A person whom the patient designates to communicate with healthcare personnel on his or her behalf regarding the patient’s condition or care or to help the patient act on the information, advice or instructions provided by the healthcare facility;
  • A person legally authorized to make health care decisions on behalf of the patient; or
  • Such other family member, friend, or associate of a patient who, along with the patient, is an appropriate person with whom the healthcare facility should communicate. The Act does provide a caveat, “unless an undue burden or fundamental alteration would result”.  However, according to defense counsel, it would be pretty hard to argue that providing an interpreter would create an “undue burden” on your practice. 
• Circumstances when it may be necessary to provide such auxiliary services, including an interpreter, include: discussion of patient history, explaining the diagnosis, treatment options, and other procedures; discussing a recommendation for treatment; obtaining informed consent for treatment; providing instructions for medications; post-treatment care and follow up activities.
• For compliance with the ADA:    
  • Enable employees to make an assessment when patients call for an appointment or at the initial visit, whichever is first, as to whether the patient or their companion who is deaf or hard of hearing requires appropriate auxiliary aids and services.
  • Never tell patients they are required to bring their own auxiliary aids, such as interpreters or assistants. Make arrangements in advance of a patient’s appointment to have the necessary auxiliary aids available.
  • Auxiliary aids for deaf patients/companions include note takers, written materials; telephone handset amplifiers; assistive listening devices; closed caption decoders; text telephones (TTYs); and other devices
  • When using an interpreter, use only qualified interpreters are necessary to ensure effective communication. This should be at no cost to the patient or family.
  • Generally the determination of whether to provide such aids or services, which aids are appropriate, and the timing, duration and frequency with which they will be provided should be made by the practice in consultation with the person and their companion.

Section 1557 of the Affordable Care Act prohibits discrimination in health care on the basis of race, color, national origin, age, disability, and sex.  

This section builds upon Title VI of the Civil Rights Act of 1964. Therefore, if the request is as a result of limited English proficiency (LEP), you must make a reasonable accommodation of providing an interpreter if you receive federal funds. HHS (Department of Health and Human Services) also provides a caveat for providers regarding the mix of language assistance services used based on the percentage of LEP individuals served, frequency, and whether services are emergent and resources available.

For Compliance with Section 1557:

• Post notifications regarding interpretative services
• Inform patients of their rights to a qualified interpreter free of charge
• Never refuse to provide  an interpreter
• Don’t require a patient to bring their own interpreter or rely upon a minor child or companion to provider interpretation
• Use only qualified interpreters (if staff members act as interpreters, update their job description to recognize this activity)