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By Elizabeth E. Hogue, Esq.
The regulatory requirements of the Balanced Budget Act of 1997 (BBA) and other initiatives of the Health Care Financing Administration (HCFA) placed a huge burden of compliance on Medicare-certified home health agencies. Accordingly, many agency managers have expended enormous resources in order to achieve compliance with an abundance of new requirements.
Now comes one more set of requirements from the U.S. Department of Health and Human Services (HHS), Office of Minority Health — yet another wrinkle in the form of 14 final regulations regarding "culturally and linguistically appropriate standards" for health care organizations. (According to the final regulations, health care organizations include all public or private institutions involved in any aspect of delivering health care services, meaning home health agencies must comply.)
As of now, these standards are considered merely recommendations, intended to assure patients of "effective, understandable, and respectful care . . . provided in a manner compatible with their cultural health beliefs and practices and preferred language," explains HHS. The standards largely mirror the 14 draft standards that HHS proposed a year ago for public comment.
Agency managers may be tempted to view this newest set of regulations as yet another burdensome requirement that must be met. But upon review of the final regulations, it appears that compliance may not be as difficult as some managers may fear.
First, it is important to acknowledge that the concept of culturally and linguistically appropriate services is consistent with good risk management. That is, providers will undoubtedly have difficulty rendering care consistent with applicable standards of care if they cannot communicate appropriately, both culturally and linguistically, with their patients.
Vital information may be omitted in encounters with patients. Lack of understanding may also result in misdiagnoses, inappropriate treatment, and lack of compliance. From the point of view of good risk management, it has also been clear to many providers that reliance on family members to translate in health care settings is a potentially risky proposition.
It is also important to note that mandatory requirements regarding the use of translators do not necessarily impose additional requirements on home health agencies. Title VI of the Civil Rights Act of 1964 has been the basis for longstanding requirements that providers must use translators to communicate with patients of limited English proficiency (LEP). (According to HHS, under Title VI, a LEP is someone who "cannot speak, read, or understand the English language at a level that permits him or her to interact effectively with clinical or nonclinical staff.")
Finally, agency managers also should recognize that few of the standards included in the final regulations are mandatory for home health agencies. Of the 14 standards, Standards 4, 5, 6, and 7 require compliance by all providers who receive federal funds. Standards 1, 2, 3, 8, 9, 10, 11, 12, and 13 are activities recommended for adoption by federal, state, and national accrediting agencies. Compliance with Standard 14 is voluntary for all health care providers. This means that agencies should focus attention on:
• Standard 4. Health care organizations must offer and provide language assistance services, including bilingual staff and interpreter services, at no cost to each patient/consumer with LEP at all points of contact, in a timely manner during all hours of operation. (For a list of on-line resources for language assistance, see "Be resourceful! Here are tools you can use," in this issue.)
• Standard 5. Health care organizations must provide to patients/consumers in their preferred language both verbal offers and written notices informing them of their right to receive language assistance services.
• Standard 6. Health care organizations must assure the competence of language assistance provided to LEP patients/consumers by interpreters and bilingual staff. Family and friends should not be used to provide interpretation services (except on request by the patient/ consumer).
• Standard 7. Health care organizations must make available easily understood patient-related materials and post signage in the languages of the commonly encountered groups and/or groups represented in the service area.
Providers may readily observe that these mandatory requirements are not significantly different from those to which they must already comply under Title VI. In light of this, what exactly should agency managers do? First, managers should give a close review of measures already in effect as a result of Title VI. Second, managers should consider "beefing up" current efforts in any ways that may be appropriate; and lastly, conclude that they have crossed another regulatory hurdle. In doing so, these practical suggestions should be emphasized:
• Staff should routinely ask patients about their preferred language and record patients’ responses in their charts.
• When patients want to use family members or friends to interpret for them, as opposed to other interpreters supplied by agencies, staff should document these requests in patients’ charts.
The regulatory burden for agencies has been significant and has taxed the resources of many managers. But compliance with mandatory regulations governing culturally and linguistically appropriate communications with patients does not appear to be nearly as taxing as the obstacles providers have already successfully negotiated.
[To obtain a complete list of publications available from the offices of Elizabeth E. Hogue, Esq., call (301) 421-0143 or send a fax request to (301) 421-1699.]