Health Care Interpreting Conference Healthcare Interpreting and Risk Management March 18-20 2010

1. Health Care Interpreting Conference Healthcare Interpreting and Risk Management March 18-20 2010 Bonnie Bilitch, RN, MSN Director, Risk Management LAC+USC Healthcare Network Jennifer De La Cruz Court Certified Interpreter and ATA-Certified Translator (Sp>Eng)

2. Privacy of Health Information

3. New Privacy of Health Information Laws Existing laws: • Federal Health Insurance Portability and Accountability Act (HIPAA) • California Confidentiality of Medical Information Act (CMIA) CMIA: Providers of healthcare may not disclose patient medical information without the patient’s written authorization, unless the disclosure is permitted or required, through exceptions specified by CMIA.

4. New Privacy of Health Information Laws CMIA Exceptions: • Other providers for treatment of the patient • Insurers, plans or others responsible for payment for services • Persons/entities providing administrative services to provider (e.g. billing) • When specifically authorized by law (e.g. FDA)

5. New Privacy of Health Information Laws CMIA Penalties: • Misdemeanor • Negligence leading to lawsuit • Administrative fines/Civil penalties So, why new laws?

6. New Privacy of Health Information Laws SB 541 and AB 211 • Intent: To hold facilities/providers accountable for maintaining the confidentiality of patient medical information • Effective January 1, 2009 • Facilities must self-report • Creates Office of Health Information Integrity • Establishes new fines – facility and individuals

7. New Privacy of Health Information Laws Reporting Requirements (SB 541) • Any unlawful or unauthorized access/use/disclosure of patient medical information to CDPH and the patient within 5 days of detection • Obligation applies to acute/psychiatric hospitals, SNF’s, licensed clinics, home health, hospice

8. New Privacy of Health Information Laws Penalties (SB 541) • $100 per day for failure to report • Up to $25,000 per patient • Up to $17,500 per subsequent violation of that patient’s medical information • Maximum total of $250,000 per reported event

9. New Privacy of Health Information Laws New State Agency (AB 211) • Office of Health Information Integrity to enforce CMIA • OHII will levy penalties for unauthorized access/use/disclosure of patient medical information by individuals (not facilities covered by SB 541)

10. New Privacy of Health Information Laws Individual Penalties (AB 211) • Up to $2,500 for negligent disclosure • Up to $25,000 for knowing and willful access, disclosure or use • Up to $250,000 for knowing and willful access, or use for financial gain. • Up to $250,000 anyone not permitted to receive medical info under CMIA who knowingly and willfully obtains, discloses or uses such info without patient’s authorization

11. Informed Consent

12. Informed 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

13. Informed Consent 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

14. Informed Consent Documentation of the process: • Narrative in the patient medical record • Forms • Signed by patient/surrogate, provider, witness

15. Informed Consent Surrogates • Appointed by patient (durable power of attorney for healthcare decisions) • Family members/registered domestic partners/friends • Appointed by the court (conservators/petitions)

16. Informed Consent Witness • Witness to the signature of the person giving the consent, not to the consent process. • Not required by CMS unless Critical Access Hospital • Always date/time

17. Informed Consent Right of refusal • Must be an informed refusal that contains all the elements of the informed consent process • Documentation similar to that of informed consent

18. Informed 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

19. 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

20. 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

21. Interpreters

22. Competency to Interpret • Requires more than self-identification as a bilingual. Some bilinguals have direct communication skills, but lack interpreting skills • Competency to interpret includes assessment of: • Ability to communicate information accurately • Ability to use appropriate modes of interpretation • Knowledge of specialized vocabulary

23. Bilinguals who interpret should have the “right” motivation • “I like to help people” • Remember that it is all about the patient/provider relationship • Resist the temptation to become more involved than ethics would allow • Sometimes the desire to help casts a shadow on true limitations in fluency or ability to stay within boundaries, which can affect outcomes

24. Educate Providers to Avoid Excuses • Sometimes, providers will have reasons for not calling for an interpreter • I speak enough (language) to “get by” • The patient “seems” to be OK with the communication • The family will re-explain • Remote interpreting methods are too complicated • The patient is usually OK in English– he should be OK in this situation, too

25. Excuses, continued • I didn’t know there are interpreters for this language • The patient never asked for an interpreter • The patient should speak English now that he lives in the U.S. • If they want assistance in (language) they need to re-schedule • It takes too long to deal with interpreted sessions

26. Unacceptable Practices • Decreased quantity and/or quality of communication with the LEP as compared to English-speaking patients • Requiring patient’s family/friends to interpret • Requiring minors to interpret (see HHS guidelines) • Reliance on English-speaking family members’ answers to history questions rather than the patient’s answers

27. Unacceptable Practices, cont. • Calling on other patients to interpret (a HIPAA violation) • Delay or denial of services due to a communication barrier • Inadequate efforts to provide written information in primary language (as applicable) • Requiring LEP to sign documents he/she cannot understand

28. Unacceptable Practices, cont. • Inadequate efforts to provide patient with an explanation in a level of language that considers cognitive abilities; failing to check for understanding • Reliance on non-fluent or weak self-reported bilingual skills for communication

29. Potential Consequences of Inadequate Interpreting • Failure to identify LEP’s lack of fluency in the assumed language (dialects) • Missed symptoms (nuances in language) • Failure to identify culturally-linked body language • Inability to demonstrate use of a “qualified” interpreter if the case turns into any type of lawsuit

30. Potential Consequences, cont. • Misunderstandings that do not get clarified and result in delays or denials of care • Interruption of patient/provider relationship due to interpreter speaking out of turn (side conversations and alliances, opinions)

31. How Can the Negative Consequences be Prevented? • Effective planning for LEP encounters at an institutional level • Policies/procedures • Informed staff • Informed providers who are committed to the plan • Training and periodic follow-up with all those providing interpreting services to ensure ethics and skills remain in line with institutional policies/procedures

32. What Should I Expect? • Interpreters at your institution should have a working knowledge of the ethical and performance standards (NCIHC/CHIA) • Expect interpreters to know how to wear only “one hat” at a time, where possible • Heighten interpreters’ awareness of situations where the interpretation could be linked to a legal matter already (victim interviews, etc.)

33. What Should I Expect? • Interpreters should be encouraged to seek opportunities to gain cultural knowledge, vocabulary and skills at regular intervals • Expect interpreters to be able to educate providers “on site” regarding how to work through an interpreter • Beware of interpreters who seem to be over-confident in skills and knowledge • Encourage interpreters to mentor each other

34. Legal Action

35. Legal Action You’ve been served • Notify your employer/facility • Work with legal counsel • Respond to subpoena • Custodian of records

36. Legal Action 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

37. Legal Action INTERPRETERS SHOULD ASSUME THAT EVERY ENCOUNTER COULD BE TAKEN TO COURT!

38. Legal Action 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

39. Legal Action During testimony As 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

40. Questions?