Michael S. Victoroff, MD

Michael S. Victoroff, MD

Title VI of the Civil Rights Act of 1964 specifies, "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."

In 1974, the U.S. Supreme Court found in Lau v. Nichols that a school's failure to address Chinese students' lack of English proficiency effectively denied them the benefits of public education, and thus amounted to discrimination on the basis of national origin.

The Office of Civil Rights (OCR) extends this principle to health care. It cites Lau in a guidance memorandum issued Jan. 29, 1998, "Title VI Prohibition Against National Origin Discrimination — Persons with Limited English Proficiency" (LEP). The OCR argues that a language barrier bars access to health services, and ruled that medical facilities must provide oral and written accommodation for LEP people.

From this reasoning descended OCR guidelines in 2000, requiring health care organizations that receive federal funds (Medicaid, Medicare, and CHAMPUS, for instance) to develop policies and practices to facilitate communication with LEP people. Importantly, the law applies to all of the organization's patients, not just the ones in federal programs. You can find these well-written guidelines, worth reading, at: «http://www.hhs.gov/ocr/lep/guide.html».

The AMA protests them on grounds of cost. It opposes "allowing the burden of funding written and oral interpretation services for limited-English-proficiency patients to fall on physicians." The AMA does not apparently challenge the value of these services, however.

The OCR guidelines — in the AMA's view — discourage doctors from caring for LEP people, due to the cost of providing translators for every language from Elvish to Fortran. The AMA points out correctly that providing a trained clinical interpreter can cost more than the reimbursement for an office visit. Thus this expense falls on physicians who treat LEP people.

Spurious reasoning

The economic argument rests on the clay-footed assumption that every office visit must produce a profit. This spurious reasoning could panic one into declaring that LEP guidelines will drive fee-for-service doctors out of practice. The same bogeyman showed up with CLIA and OSHA. This reflects more a defect in fee-for-service economics than one in the regulatory system.

This nutty "what-if" extremism doesn't invalidate a real ethical point, however. The OCR mandate increases health care costs. It demands cost shifting, that is, subsidizing part of the cost of treating one patient with profits taken on another. Currently, the resource-based relative value scale takes no account of communication services. As with many local factors, LEP people impose variable burdens on practices, the greatest falling on the ethnically diverse. Arguably, these include some of the least profitable and most vulnerable.

Interpreted with literal fundamentalism, the guidelines could economically crush some facilities. The actual text is worldly and sensible. It concedes, "There is no 'one-size-fits-all' solution for Title VI compliance with respect to LEP persons." For example, written documents generally only need be provided in languages representing 10 percent of a practice, or 3,000 patients. If 10 percent of your practice speaks Klingon, shouldn't your receptionist?

Before the AMA's economic argument can be taken seriously, it would have to demonstrate that translation costs are actually ruinous. This is not evident, even anecdotally.

What about insurance reimbursement? This is not a panacea for two reasons. LEP people aren't as numerous among privately insured as among publicly insured. Building this cost into commercial premiums would hit the LEP group hardest. One thing the AMA and insurers would agree on: Wherever the cost comes from, it amounts to a tax. I like where this leads. Spread the cost among the largest revenue base. At least one state partially covers translation services for Medicaid patients. I think this is the way to go.

Yet, unmanaged translation exposes the payer to the risks of third-party reimbursement: demand, utilization, and quality. Like any service paid by a third party, unlimited subsidy for translation could create a huge new industry, without any way of measuring its effectiveness.

Aside from cost and utilization, the liability problems are even more fascinating, and can't be handed off. How should providers understand their potential exposure to federal prosecution and perhaps civil liability? It's hard to cite LEP as a defense for medical error, especially when federal law requires translation. Still, who qualifies as a translator, and with what credentials?

Communication is so fundamental to medicine, it's hard to isolate and analyze as merely another "component" of care. A patient who can't speak to the doctor is so impaired that the ethical basis of the encounter is redefined. This is regardless of the knowledge, intelligence, or values of the patient. Einstein is not Einstein in Timbuktu.

If you've been sick in a country where you don't speak the language, you can empathize with the terror and shame that grip patients who can't converse with those on whom their lives depend.

Ten percent of U.S. residents are foreign born. Fourteen percent of us speak a language other than English at home. Nearly half of these speak English less than "very well." Three percent of all Americans speak English "not well or not at all." (My own research — random interviews and eavesdropping on high school students — puts this figure at 10 times that rate.)

This does not address illiteracy, nor does it speak to impairments (e.g., vision, hearing) that fall under other laws, such as Section 504 of the Rehabilitation Act of 1973, or the Americans With Disabilities Act.

So, what is a doctor's duty to strangers in a strange land? What is "medically necessary communication?" Doctors can't take the attitude, "If patients can't talk to me, it's too risky to mess with them. I only function under ideal conditions." This rationalization is inhumane and probably racist. Worse, it's nonsense.

  • Shall we spare physicians the irritation of every difficult communication scenario? Do we exempt doctors from treating stroke patients, stutterers, and New Jersey persons? For that matter, who hasn't encountered difficulty communicating sometimes with the most articulate of English speakers?
  • It turns out that many patients have something in common with LEP people. Namely, there are definable costs involved in their care that aren't directly recoverable. Some physicians consciously choose or design practices to avoid this reality. The rest have to manage in a way that keeps them operating under the financial pressures humanitarianism imposes.
  • It's impossible to assure optimal communication, even with best efforts and good faith. Errors sometimes result from this inescapable fact. The admirable intent of the Civil Rights Act exposes some serious gaps in health care that aren't easily remedied. The problems lie in the twilight zone where people try to make themselves truly understood to each other. What's enough communication, anyway?

Michael S. Victoroff, MD, is a family practitioner in Denver.

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