health care interpreting conference healthcare interpreting and risk management march 18-20 2010...

Health Care Interpreting ConferenceHealth Care Interpreting Conference

Healthcare Interpreting and Risk ManagementHealthcare Interpreting and Risk Management

March 18-20 2010March 18-20 2010Bonnie Bilitch, RN, MSNBonnie Bilitch, RN, MSNDirector, Risk ManagementDirector, Risk Management

LAC+USC Healthcare NetworkLAC+USC Healthcare Network

Jennifer De La CruzJennifer De La CruzCourt Certified Interpreter and ATA-Certified Translator (Sp>Eng)Court Certified Interpreter and ATA-Certified Translator (Sp>Eng)

Privacy of Health Information

New Privacy of Health

Information LawsExisting laws: Existing laws: Federal Health Insurance Portability and Federal Health Insurance Portability and

Accountability Act (HIPAA)Accountability Act (HIPAA) California Confidentiality of Medical Information California Confidentiality of Medical Information

Act (CMIA)Act (CMIA)

CMIA: Providers of healthcare may not disclose CMIA: Providers of healthcare may not disclose patient medical information without the patient’s patient medical information without the patient’s written authorization, unless the disclosure is written authorization, unless the disclosure is permitted or required, through exceptions permitted or required, through exceptions specified by CMIA.specified by CMIA.


Information LawsCMIA Exceptions:CMIA Exceptions:

Other providers for treatment of the Other providers for treatment of the patientpatient

Insurers, plans or others responsible for Insurers, plans or others responsible for payment for servicespayment for services

Persons/entities providing administrative Persons/entities providing administrative services to provider (e.g. billing)services to provider (e.g. billing)

When specifically authorized by law (e.g. When specifically authorized by law (e.g. FDA)FDA)


Information LawsCMIA Penalties:CMIA Penalties:

MisdemeanorMisdemeanor Negligence leading to lawsuitNegligence leading to lawsuit Administrative fines/Civil penaltiesAdministrative fines/Civil penalties

So, why new laws?So, why new laws?


Information LawsSB 541 and AB 211SB 541 and AB 211

Intent: To hold Intent: To hold facilities/providersfacilities/providers accountable accountable for maintaining the confidentiality of patient for maintaining the confidentiality of patient medical informationmedical information

Effective January 1, 2009Effective January 1, 2009 Facilities must self-reportFacilities must self-report Creates Office of Health Information IntegrityCreates Office of Health Information Integrity Establishes new fines – facility and individualsEstablishes new fines – facility and individuals


Information LawsReporting Requirements (SB 541)Reporting Requirements (SB 541)

Any unlawful or unauthorized Any unlawful or unauthorized access/use/disclosure of patient access/use/disclosure of patient medical information to CDPH and the medical information to CDPH and the patient within 5 days of detectionpatient within 5 days of detection

Obligation applies to Obligation applies to acute/psychiatric hospitals, SNF’s, acute/psychiatric hospitals, SNF’s, licensed clinics, home health, hospicelicensed clinics, home health, hospice


Information LawsPenalties (SB 541)Penalties (SB 541)

$100 per day for failure to report$100 per day for failure to report Up to $25,000 per patientUp to $25,000 per patient Up to $17,500 per subsequent Up to $17,500 per subsequent

violation of that patient’s medical violation of that patient’s medical informationinformation

Maximum total of $250,000 per Maximum total of $250,000 per reported eventreported event


Information Laws New State Agency (AB 211)New State Agency (AB 211)

Office of Health Information Integrity to Office of Health Information Integrity to enforce CMIAenforce CMIA

OHII will levy penalties for unauthorized OHII will levy penalties for unauthorized access/use/disclosure of patient medical access/use/disclosure of patient medical information by information by individualsindividuals (not facilities (not facilities covered by SB 541)covered by SB 541)


Information Laws Individual Penalties (AB 211)Individual Penalties (AB 211)

Up to $2,500 for negligent disclosureUp to $2,500 for negligent disclosure Up to $25,000 for knowing and willful Up to $25,000 for knowing and willful

access, disclosure or useaccess, disclosure or use Up to $250,000 for knowing and willful Up to $250,000 for knowing and willful

access, or use for financial gain.access, or use for financial gain. Up to $250,000 anyone not permitted Up to $250,000 anyone not permitted

to receive medical info under CMIA to receive medical info under CMIA who knowingly and willfully obtains, who knowingly and willfully obtains, discloses or uses such info without discloses or uses such info without patient’s authorizationpatient’s authorization

Informed Consent

Informed ConsentInformed Consent

• All patients have a fundamental right to informed consent by state and federal laws

• Expectations of Centers for Medicare Services, The Joint Commission, California Code of Regulations……

• Responsibility of provider and institution

• Failure to obtain consent: Battery/Medical Malpractice


Process of Informed Consent:• The nature of the procedure• The risks, complications, and

expected benefits or effects of the procedure

• Any alternatives to the treatment and their risks and benefits

• Potential conflict of interests


Documentation of the process:Documentation of the process:• Narrative in the patient medical recordNarrative in the patient medical record• FormsForms• Signed by patient/surrogate, provider, Signed by patient/surrogate, provider,

witnesswitness


SurrogatesSurrogates• Appointed by patient (durable power Appointed by patient (durable power

of attorney for healthcare decisions)of attorney for healthcare decisions)• Family members/registered domestic Family members/registered domestic

partners/friendspartners/friends• Appointed by the court Appointed by the court

(conservators/petitions)(conservators/petitions)


WitnessWitness• Witness to the signature of the Witness to the signature of the

person giving the consent, not to the person giving the consent, not to the consent process.consent process.

• Not required by CMS unless Critical Not required by CMS unless Critical Access HospitalAccess Hospital

• Always date/timeAlways date/time


Right of refusalRight of refusal• Must be an informed refusal that Must be an informed refusal that

contains all the elements of the contains all the elements of the informed consent processinformed consent process

• Documentation similar to that of Documentation similar to that of informed consentinformed consent


Use of interpreter for informed consent• Required by California Health and Safety

Code, CMS, Title VI, TJC • Interpretation of verbal process• Translation of informed consent

forms/educational materials• Written attestation with signature, date,

time

Suggested attestation language when using an interpreter during the informed consent process*

“I have accurately and completely orally interpreted in the patient’s or patient’s legal representative’s language, (language), all of the information told to (patient/representative) by (healthcare provider) and have completely and accurately orally interpreted all communication between the patient/representative with the above named healthcare provider. (He/she) understood all the terms and conditions and acknowledged (his/her) agreement thereto by signing the document in my presence.”

*California Hospital Association – Consent Manual 2009

Suggested attestation language when written material is translated by an interpreter*

“I have accurately and completely read/interpreted the provider’s explanation of the foregoing document to (insert patient’s or legal representative’s name) in (identify language), the patient’s or legal representative’s primary language. (He/she) understood all the terms and conditions and acknowledged (his/her) agreement thereto by signing the document in my presence.”

*California Hospital Association – Consent Manual 2009

Interpreters

Competency to InterpretCompetency to Interpret

Requires more than self-identification as Requires more than self-identification as a bilingual. a bilingual.

Some bilinguals have direct communication skills, Some bilinguals have direct communication skills, but lack interpreting skillsbut lack interpreting skills

Competency to interpret includes Competency to interpret includes assessment of:assessment of:

– Ability to communicate information accuratelyAbility to communicate information accurately– Ability to use appropriate modes of Ability to use appropriate modes of

interpretationinterpretation– Knowledge of specialized vocabularyKnowledge of specialized vocabulary

Bilinguals who interpret Bilinguals who interpret should have the “right” should have the “right”

motivationmotivation ““I like to help people”I like to help people”

– Remember that it is all about the Remember that it is all about the patient/provider relationshippatient/provider relationship

– Resist the temptation to become more Resist the temptation to become more involved than ethics would allowinvolved than ethics would allow

– Sometimes the desire to help casts a Sometimes the desire to help casts a shadow on true limitations in fluency or shadow on true limitations in fluency or ability to stay within boundaries, which ability to stay within boundaries, which can affect outcomescan affect outcomes

Educate Providers to Educate Providers to Avoid ExcusesAvoid Excuses

Sometimes, providers will have reasons Sometimes, providers will have reasons for not calling for an interpreterfor not calling for an interpreter– I speak enough (language) to “get by”I speak enough (language) to “get by”– The patient “seems” to be OK with the The patient “seems” to be OK with the

communicationcommunication– The family will re-explain The family will re-explain – Remote interpreting methods are too Remote interpreting methods are too

complicatedcomplicated– The patient is usually OK in English– he The patient is usually OK in English– he

should be OK in this situation, tooshould be OK in this situation, too

Excuses, continuedExcuses, continued

- I didn’t know there are interpreters for I didn’t know there are interpreters for this languagethis language

- The patient never asked for an interpreterThe patient never asked for an interpreter- The patient should speak English now The patient should speak English now

that he lives in the U.S.that he lives in the U.S.- If they want assistance in (language) they If they want assistance in (language) they

need to re-scheduleneed to re-schedule- It takes too long to deal with interpreted It takes too long to deal with interpreted

sessionssessions

Unacceptable PracticesUnacceptable Practices

- Decreased quantity and/or quality of Decreased quantity and/or quality of communication with the LEP as compared to communication with the LEP as compared to English-speaking patientsEnglish-speaking patients

- Requiring patient’s family/friends to Requiring patient’s family/friends to interpretinterpret

- Requiring minors to interpret (see HHS Requiring minors to interpret (see HHS guidelines)guidelines)

- Reliance on English-speaking family Reliance on English-speaking family members’ answers to history questions members’ answers to history questions rather than the patient’s answersrather than the patient’s answers

Unacceptable Practices, Unacceptable Practices, cont.cont.

- Calling on other patients to interpret Calling on other patients to interpret (a HIPAA violation)(a HIPAA violation)

- Delay or denial of services due to a Delay or denial of services due to a communication barriercommunication barrier

- Inadequate efforts to provide written Inadequate efforts to provide written information in primary language (as information in primary language (as applicable)applicable)

- Requiring LEP to sign documents Requiring LEP to sign documents he/she cannot understandhe/she cannot understand

Unacceptable Practices, Unacceptable Practices, cont.cont.

- Inadequate efforts to provide patient Inadequate efforts to provide patient with an explanation in a with an explanation in a levellevel of of language that considers cognitive language that considers cognitive abilities; failing to check for abilities; failing to check for understandingunderstanding

- Reliance on non-fluent or weak self-Reliance on non-fluent or weak self-reported bilingual skills for reported bilingual skills for communicationcommunication

Potential Consequences of Potential Consequences of Inadequate InterpretingInadequate Interpreting

- Failure to identify LEP’s lack of fluency Failure to identify LEP’s lack of fluency in the assumed language (dialects)in the assumed language (dialects)

- Missed symptoms (nuances in Missed symptoms (nuances in language)language)

- Failure to identify culturally-linked Failure to identify culturally-linked body languagebody language

- Inability to demonstrate use of a Inability to demonstrate use of a “qualified” interpreter if the case turns “qualified” interpreter if the case turns into any type of lawsuitinto any type of lawsuit

Potential Consequences, Potential Consequences, cont.cont.

- Misunderstandings that do not get Misunderstandings that do not get clarified and result in delays or clarified and result in delays or denials of caredenials of care

- Interruption of patient/provider Interruption of patient/provider relationship due to interpreter relationship due to interpreter speaking out of turn (side speaking out of turn (side conversations and alliances, conversations and alliances, opinions)opinions)

How Can the Negative How Can the Negative Consequences be Consequences be

Prevented?Prevented?- Effective planning for LEP encounters at Effective planning for LEP encounters at

an institutional levelan institutional level- Policies/proceduresPolicies/procedures- Informed staffInformed staff- Informed providers who are committed to the Informed providers who are committed to the

planplan

- Training and periodic follow-up with all Training and periodic follow-up with all those providing interpreting services to those providing interpreting services to ensure ethics and skills remain in line ensure ethics and skills remain in line with institutional policies/procedureswith institutional policies/procedures

What Should I Expect?What Should I Expect?

- Interpreters at your institution should Interpreters at your institution should have a working knowledge of the ethical have a working knowledge of the ethical and performance standards (NCIHC/CHIA)and performance standards (NCIHC/CHIA)

- Expect interpreters to know how to wear Expect interpreters to know how to wear only “one hat” at a time, where possibleonly “one hat” at a time, where possible

- Heighten interpreters’ awareness of Heighten interpreters’ awareness of situations where the interpretation could situations where the interpretation could be linked to a legal matter already (victim be linked to a legal matter already (victim interviews, etc.)interviews, etc.)

What Should I Expect?What Should I Expect?

- Interpreters should be encouraged to seek Interpreters should be encouraged to seek opportunities to gain cultural knowledge, opportunities to gain cultural knowledge, vocabulary and skills at regular intervalsvocabulary and skills at regular intervals

- Expect interpreters to be able to educate Expect interpreters to be able to educate providers “on site” regarding how to work providers “on site” regarding how to work through an interpreterthrough an interpreter

- Beware of interpreters who seem to be Beware of interpreters who seem to be over-confident in skills and knowledgeover-confident in skills and knowledge

- Encourage interpreters to mentor each Encourage interpreters to mentor each otherother

Legal Action

Legal ActionLegal Action

You’ve been served

• Notify your employer/facility• Work with legal counsel• Respond to subpoena• Custodian of records


You’ve been asked/required to testify

• Prepare with legal counsel• Answer only the question• If you don’t remember, it’s

appropriate to say so


INTERPRETERS SHOULD ASSUME THAT EVERY ENCOUNTER COULD

BE TAKEN TO COURT!


Prepare for testimony• Be prepared to demonstrate

background• How each language was learned• Language spoken at home growing up• Certifications and training in skills and

vocabulary


During testimonyAs applicable, cite industry

organizations, ethics, dictionaries, websites that support decisions made during encounter

The attack is not personal against the interpreter, but rather on the decisions made and the outcomes that may have been a direct result of them

Questions?Questions?

health care interpreting conference healthcare interpreting and risk management march 18-20 2010...

Documents

home health

new laws

providers of healthcare

willful access

administrative services

medicare services

procedurethe risks

licensed clinics