Wednesday, October 21, 2009

Paying for Interpreters is Just the Beginning

When a New Jersey court decided the case of Gerena v. Fogari just over a year ago many hailed the verdict as a win for disabled people arguing that it would send a message to doctors and others that they must provide, and in many cases pay for, sign language interpreters for hearing impaired patients (clients). But I believe the fact that the physician might actually lose money for the privilege of treating the hearing impaired patient will result in physicians looking for ways to avoid treating them at all. This unfunded mandate from the US government will lead to more rather than fewer problems for people with disabilities.

The AMA reported on the case here. Briefly, Dr. Fogari, who, if he's the same Dr. Fogari reported on here, seems to have more than his share of problems, elected not to hire a sign language interpreter to assist in communicating with his hearing impaired patient Gerena. She sued for discrimination, not malpractice, and was award substantial punitive damages. Because Medicare limits what he can collect Dr. Fogari would have had to pay an interpreter (whose fee is not limited) as much as 3-4 times as much, for a net loss of $100 - $150 for each of Ms. Gerena's visits. (This may be another good reason to opt out of Medicare, or just refuse to treat patients covered by Medicare.) Apparently judge and jury thought Dr. Fogari enjoyed enough income to spread the cost among among his entire patient load without hardship.

Whether Dr. Fogari could afford to lose money in caring for Ms. Gerena is beside the point. The essence of any professional relationship is that a service is provided for a fee, and medical ethics has always held that a physician, except perhaps in an emergency, must be able to choose whom to treat. My understanding of the rationale for this is that both physician and patient can suffer when the relationship is forced, regardless of whether the source of dislike for the patient is financial or otherwise. Even providing free treatment can raise questions about the physician's motivation in providing the care, and the patient should wonder whether she really wants care from a physician who might resent providing that care. There must be a give and take.

But suppose the physician elects to take on such a case. Now he may feel stuck with the patient and may resent it. It seems likely that the courts will assume that discharging constitutes unlawful discrimination, and punish the physician accordingly. Suppose the patient demands a prescription for Oxycontin, fails to keep appointments, or otherwise makes a nuisance of herself. The physician may feel pressured to give in to avoid getting in trouble. This threat gives the patient too much power to manipulate the physician.

Let us say you, the physician, get a call from a family member to schedule an initial office visit for their hearing impaired relative. I suggest you make the appointment at least several weeks out, because you will have a lot of preparation ahead of you. First you must decide whether to hire a professional interpreter or to use a family member. I would argue that, although probably free of charge, you cannot accept a family member. You will not know the family member's level of competence, and if a misunderstanding leads to a bad outcome, you may be liable. Furthermore, the patient may not want to share personal information with a family member. The patient may authorize release of information, but the physician has no way of knowing whether the patient has been candid, not too mention that the family member can censor what the patient "says" unbeknownst to the physician.

Having decide to use a professional sign language interpreter, now you must choose one. Although you may want to consider the recommendation of the patient, remember that you will likely be held responsible for the outcome. Consider interviewing several candidates and obtaining references before choosing.

And now comes the disclaimer: I am not an attorney. This does not constitute legal (or medical) advice. Maybe the first thing to do when that patient calls you is for you to contact an attorney to advise you on these issues and any others I may have overlooked.

Having selected an interpreter you must now negotiate the terms of the contract. Expect to pay for travel time and expense as well as waiting time. Expect also to pay even if the patient does not show up. If you like to take risks you might try demanding that the patient pay the no show fee. Of course you will need to decide how to handle the situation in which the patient appears but the interpreter does not. You will probably want to reschedule. Some interpreters may work via Internet video feed, but will this meet standard of care? Is this telemedicine? Will it increase your liability?

You must attend to some other matters. According to the Department of Labor and Industries in my state (WA), if a contractor like your interpreter gets hurt while working for you and has not purchased worker's compensation coverage, you must pay his medical expenses and possibly time loss compensation. Just like when hiring a contractor to work on your home you should require the interpreter to provide written proof of coverage.

Remember that your patient and you will reveal protected health information to the interpreter during the visit. You should consider obtaining written authorization from the patient for you to release information to the interpreter. Here you will face a Catch 22: You should have signed authorization before the interpreter gets involved in the conversation, but you will not be able to communicate with the patient (except in writing) about the authorization until the interpreter is present. Furthermore, if you meet the criteria for a covered entity, HIPAA probably requires that you have a business associate agreement with the interpreter.

Finally, consider the outcome if the interpreter negligently misinterprets resulting directly in injury to your patient. I do not know whether interpreter's can even purchase malpractice insurance. Even if the interpreter has insurance the patient will likely name you in a malpractice suit because you have the deep pocket. Consider requiring the interpreter to sign an agreement to indemnify you in such a situation. You may also want to require the interpreter to provide you with written evidence of current professional liability coverage, and the limits of liability.

Physicians should also consider how to handle contacts outside of office hours. Do you know how to use TTY? Will a physician covering your practice in your absence know how to manage?

All this probably really makes you eager to take care of hearing impaired patients. But do not expect any of this to go smoothly. A few months ago I contacted the local office of Interpreter Network to inquire about some of the issues above. After several attempts by phone and email I received a curt message from Robbi Crocett, the Executive Director, who seemed to have no grasp of the need for worker's compensation coverage for contractors ("... we are not under the L&I contract so this would be billed directly to your office..") and was unaware of the HIPAA requirement for a business associate agreement ("... we are familiar with HIPPA regulation and this is a clause that was listed in the Terms and Conditions...").

As I believe is true of most health care related legislation, neglect of reality by lawmakers leads to opportunity for attorneys and more problems for others. Misguided judges and juries compound the problems. This legislation should have provided reimbursement for interpreters by payers, including private insurers (as I understand may now be required now in California). The verdict in Gerena v. Fogari likewise may have helped Gerena and her attorney but will likely hurt rather than help hearing impaired people, like my own father, and others with disabilities. I believe Dr. Fogari should have argued that it would be unethical for him to operate at a financial loss in caring for Ms. Gerena. I hope he will appeal.

Sign language interpreters serving in medical settings should be subjected to certification and licensure requirements just like health care professionals. And when the physician's fee is restricted, so should the interpreter's.

Physicians often effectively advocate for people with disabilities. Many of you are our patients. Attacking them will turn them from friends into enemies.We should all share in costs associated with accommodation of disabilities, and all disabled patients, not just those whose physicians can afford it, should be accommodated. Physicians are not the financial "bailout" for a failing health care system or for those with disabilities.


  1. What about an office creating a uniform policy of requiring the patient to supply interpreter services if unable to communicate by conventional means. This would suggest that someone who speaks Russian or Mandarin would be obligated to supply interpreter as well as someone with impaired hearing. It may obviate any accusations of discrimination since I don't think the disabilities act suggests that one is disabled if one can't speak English. I am sympathetic to this problem. Medicare guidelines may make tranfering this responsibility to the patient difficult.

  2. The difference is between a language barrier because of a difference in language and a communication barrier because of a disability. We as humans learn language and can learn other languages. The transition is within the person's control.

    However, a communication barrier caused by a disability is a barrier that the person does not choose to have placed upon themselves. A person does not choose to loose the ability to hear. A person can only do so much to change that circumstance (i.e. hearing aids, etc.) and often is insufficient to remove the barrier to communication.

    The ADA discusses attitudinal barriers because of the person's disability. That attitude is not their own, it is the person(s) they are dealing with. This is not always understood to mean they are treated disrespectfully (though sometimes it is) but can manifest as something as simple as an unwillingness to write completely everything that would have been said otherwise. Physicians or attorneys say they write everything when in reality it is only be a cursory explanation impossible to comprehend because of sloppy handwriting.

    Those things are outside of the person's control. In my opinion they are the very essence of the ADA.

    Regarding the California payment of interpreters I believe it underscores my point. The health plans of California are not required to pay for sign language interpreters (they can if they want but that is their choice) because it is not a question of language access but one of communication access. The cost of accessibility for a patient with a disability (i.e. interpreters, braille, etc.) is not paid by the person's health plan.

    The cost of accessibility should not be considered in comparison to the individual with a disability. That in and of itself is where discrimination based on physical characteristics outside of the person's control run rampant. The cost of accessibility is that of making the business accessible to everyone without regard to disability. In that regard the cost is shared as you advocated by all, including the person with a disability. The key thing to remember is that is shared equally and fairly by all.

    The ADA does provide for tax credits (which is equivalent to a rebate) and tax deductions for the cost of disability access. It may not be the amount that a doctor would want but that is a question of politics not policy.

    I commend your well considered suggestions because I think you offer very good ideas. I especially like the suggestion of physician's requiring indemnification clauses.

    Speaking as a professional interpreter holding national certification for over 10 years now, if we want to ask for and justify the rates that exist then we should be ready to step up to the plate to provide the professional service during the appointment and the professional practices before and after the appointment.

  3. 1) I think Mr. Crouse's distinction between a non-English language and ASL is weak. ASL is very much a language, reflective of a highly developed and distinctive culture. The fact that it is a manual vs. an aural language does not render it worthy of special treatment. No, if one is going to require the physician to provide interpreter services, (something which I would hasten to say I think is a crazy idea), it will have to apply to any and all languages.
    2)That said, here in Canada the state has in fact implicitly accepted Mr. Crouse's position, at least in part. The agency which administers sign language interpreter services is funded by government, as is the agency providing interpreters for foreign languages, although neither agency is fully funded, and both will also charge the party requesting the service if they are able to do so. I think this model is probably more rational, but the basis of it is the concept that the state bears a degree of responsibility to care for those who, for one reason or another are unable to care for themselves. This is called socialism, and I am well aware of the vehemence raised by the use of this term in The Land of the Free. (Yes, I am suggesting that this particular issue is only a small manifestation of a much more fundamental question of societal philosophy.)