by Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the March 2004 issue of the Journal
Dear Dan Schulte: Am I required under the law to pay for interpreters for patients who don’t speak English or for patients who speak only limited English?
Answer: Yes — but only if the dentist receives Medicaid reimbursement, State Children’s Health Insurance Program Reimbursement, or other reimbursement from a federal assistance program (other than Medicare Part B payments).
President Clinton’s Executive Order No. 13166 (effective Aug. 11, 2000) requires all providers of medical services receiving these types of reimbursement for their services to “develop and implement a system” to ensure that their patients with limited English proficiency will receive “meaningful access” to their medical services. The Department of Health and Human Services (DHHS) on Dec. 5, 2001 published guidance on what specific steps (such as hiring a professional interpreter, allowing family members to translate, hiring bilingual staff, referring out patients to a dentist who speaks the required language, etc.) dentists and other providers are required to take to develop and implement such a system.
This DHHS guidance document makes clear that dentists are required to provide some type of interpreting service (at no cost to the patient) when necessary to ensure that a patient can: (i) adequately communicate to the dentist the information necessary for the dentist to care for the patient; and (2) adequately understand the dentist’s diagnosis and instruction.
Unfortunately, the DHHS guidance document does not provide any black-and-white answers to dentists’ questions regarding the type of and the extent to which they are required to offer interpreting services for their patients with limited English proficiency.
The Bush administration in August 2003 revised the Dec. 5, 2001 DHHS guidance document. This revision acknowledged that there is no clear rule on exactly what interpreting services providers are required to make available to their patients with limited English proficiency. The August 2003 revised guidance requires dentists receiving the types of reimbursement described above to consider the following four factors when deciding when and what interpreting services to provide:
- the number or proportion of patients with limited English proficiency;
- the frequency of encounters with individuals with limited English proficiency;
- the importance of the services provided; and
- resources available to provide interpreting services.
The revised guidance states that dentists are required only to take “reasonable” steps to provide interpreting services, the required extent of which will depend on the outcome of the dentist’s examination of the four factors listed above. For example, the revised guidance suggests that a small practice with a limited budget is not expected to provide the same level of interpreting services as a larger, group practice with a bigger budget. The revised guidance also acknowledges that what is considered “reasonable” may change over time.
Given the language of the DHHS guidance, as revised, it appears that dental practices that have very few patients with limited English proficiency should identify a source within their practice areas to provide interpreting services on an as-needed basis. Alternatively, patients of such practices could be referred to another dentist in the area who speaks the same language as the patient, or to another dentist with a person on staff who speaks the same language.
Large dental practices with a substantial number of patients with limited English proficiency might be reasonably expected to have available additional interpreting services, such as telephone or video interpreting, bilingual staff, etc.
The revised guidance also states that a member of the patient’s family who competently speaks English may be used as an interpreter. However, the patient cannot be forced to use a family member as an interpreter.