NO LEP of faith by Pat Conrad MD

nohabla

A few years back I wrote a column about a New Jersey rheumatologist named Robert Fogari, MD. he was written up in the AMA News for being sued by a lupus patient, Irma Gernea…but not for malpractice. After seeing Dr. Fogari for 20 separate visits over 18 months, Gerena “made no allegations of medical negligence.” Rather she sued claiming a violation of the Americans with Disabilities Act because the doctor refused to hire a sign language interpreter to accommodate her deafness. Ms. Gerena, who persuasively claimed that she was the victim of inadequate communication regarding her care, corresponded with her doctor via written notes with the help of family members who were always present. The cost of the specialized interpreter would run according to the defense, $150-$200 per visit, while the reimbursement to the physician would be a Medicare-blessed $49. Result: the jury found for the plaintiff to the tune of $400,000, half of which was for punitive damages. Ms. Gerena’s attorney argued that the annual cost of the interpreter amounted to a tiny fraction of Fogari’s income, asking the court therefore to accept the notion that the patient had a claim to part of the doctor’s income without proving any material damages. So because Ms. Gerena was deaf, it was decided that she should be afforded more rights than the business owner unlucky enough to render her an apparently adequate service, despite obviously adequate communication rendered by family members present.

Uncle Sam also regards not speaking English as a disability. Title VI of the U.S. Civil Rights Law of 1964 prohibits hospitals, physicians, and other healthcare providers receiving “federal financial assistance” from discriminating against patients who do not speak English. Previously Medicare B payments were considered to be under insurance contracts, and therefore not subject to Title VI. However in 2010, the law was re-written to define Medicare B payments as federal financial assistance, making doctors who receive them subject to Title VI, and that means they have to pay for language assistance.

So who has to shell out for a translator? The HHS Office of Civil Rights looks at the number of “limited English proficiency” (LEP) patients, how often the LEP’s are seen, what the LEP’s are seen for, and how much the doc has to spend to communicate with the LEP’s. The physician might also be responsible for translating foreign documents and providing phone translation, and referral to another physician’s office may only be done if there is no discriminatory intent and it the referring doc makes sure that the receiving doc is language assistance capable for that patient. And yes, there are also numerous state laws with which to comply (good luck, California). “While the HHS makes allowances for small offices with limited resources, any medium to large size hospital is expected to provide translation services and written materials 24/7.” So whether it is a private office or a hospital, the onus is on the English-speakers to provide for the LEP’s at their own expense. Or, as with so much else in medicine and elsewhere, the onus is on those who do the work to accommodate those who merely express a need, under threat of legal force.

Douglas Farrago MD

Douglas Farrago MD is a full-time practicing family doc in Forest, Va. He started Forest Direct Primary Care where he takes no insurance and bills patients a monthly fee. He is board certified in the specialty of Family Practice. He is the inventor of a product called the Knee Saver which is currently in the Baseball Hall of Fame. The Knee Saver and its knock-offs are worn by many major league baseball catchers. He is also the inventor of the CryoHelmet used by athletes for head injuries as well as migraine sufferers. Dr. Farrago is the author of four books, two of which are the top two most popular DPC books. From 2001 – 2011, Dr. Farrago was the editor and creator of the Placebo Journal which ran for 10 full years. Described as the Mad Magazine for doctors, he and the Placebo Journal were featured in the Washington Post, US News and World Report, the AP, and the NY Times. Dr. Farrago is also the editor of the blog Authentic Medicine which was born out of concern about where the direction of healthcare is heading and the belief that the wrong people are in charge. This blog has been going daily for more than 15 years Article about Dr. Farrago in Doximity Email Dr. Farrago – [email protected]