Home Health & Hospice Week

Crucial: Know what ‘understandable’ means.

Home health agencies have their hands full prepping for new patient rights notice requirements in the Conditions of Participation, but they can’t let a critical requirement slip through the cracks.

The new Patient Rights CoP specifies language accommodations in multiple places (see regulatory language, p. 125). In the CoP finalized in January, the Centers for Medicare & Medicaid Services says home health agencies must provide:

• a written patient rights notice that is “understandable to persons who have limited English proficiency” before care commences;
• a verbal patient rights notice “in the individual’s primary or preferred language and in a manner the individual understands” by the end of the second visit;
• information on their right to language services and how to access them.

Making sure the new patient rights verbal notice contains all the newly required information is already a challenge. Agencies must go a step further and ensure they are furnishing it in the patient’s preferred language, highlights attorney Bob Morgan with Much Shelist in Chicago.

The obligation to “provide our patients all of this information in their own language … may mean having to have documents translated into languages other than English in a very short period of time,” says consultant Pam Warmack with Clinic Connections in Ruston, La.

HHAs commenting on the proposed CoPs expressed worry about the burden these language responsibilities will place on them. “A large number of commenters posed questions regarding the proposed requirement to communicate with patients in a language and manner that they understand,” CMS notes in the final rule. “Commenters wanted to know if all patient rights documents would be required to be translated into the patient’s preferred language both orally and in writing.” They also worried about whether written notices would be required in each possible language the agency may encounter in the community, and wanted CMS to provide a “more limited and nationally standardized set of languages in which such notice must be conveyed.”

Meeting such requirements may be especially difficult because “there are times when an HHA is not aware of the referred patient’s language preference until the visit is initiated,” one commenter pointed out.

Written Notice Translation Not Always Required

“We … realize the task of requiring agencies to communicate with patients in a language and manner in which they understand may cause confusion when trying to meet the regulations in a consistent manner to remain compliant,” CMS says.

A break: “We do not have the expectation that HHAs will be presenting a translated patient rights document to every single patient in their native language when they are admitted and before they begin receiving care,” CMS allows. “We want to emphasize that the term ‘understandable’ does not mean it is expected to be written in every language.”

So what does “understandable” mean? Patients should “achieve a grasp of the explanation of something and not necessarily a verbatim written translation,” CMS explains in the rule. “We expect HHAs to utilize technology, such as telephonic interpreting services and any other available resources for oral communication in the patient’s primary or preferred language prior to the completion of the second skilled visit.”

Timeframe extended: CMS originally proposed that, like the written notice, agencies provide an oral notice on the first visit before providing care.

But heeding HHA comments, CMS changed that timeframe to the end of the second visit (see Eli’s HCW, Vol. XXVI, No. 15). That extension “will also alleviate concerns regarding an unforeseen inability to orally inform a patient of his or her rights in understandable language and manner preventing the clinician performing the initial patient visit from admitting the patient to services,” CMS believes.

CMS Shrugs Off Additional Burden Complaints

Most of these language requirements should not be a new burden, CMS insists. “The requirement to communicate with patients in a language and manner that the patient understands is not a new expectation for Medicare-approved HHAs, as they are already required to be in compliance with the current civil rights requirements and guidance,” the rule notes. That includes Title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, section 1557 of the Affordable Care Act, “other pertinent requirements of the Office for Civil Rights of HHS,” and HHS guidance from 2003 on furnishing interpreters, CMS points out.

“The requirement to communicate with patients in a language and manner that the patient understands would not impose a new burden on HHAs,” CMS maintains.

But the verbal notice portion is new for some agencies, the agency acknowledges. “The national accrediting organizations already require their accredited HHAs to orally apprise their patients of their rights in situations where patients cannot read or understand the written notice,” the agency observes in the rule. Non-accredited agencies currently don’t have that mandate.

While providers should comply with National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care, CLAS compliance doesn’t necessarily translate to CoP compliance, CMS takes pains to point out. CLAS “is a good reference, but we are unable to say with certainty that adherence to CLAS guarantees full compliance with this rule because each situation is evaluated on its own merits,” according to the CoPs rule.

Critical: As with all regulatory requirements, one of the most crucial elements of compliance will be documentation, Morgan points out.

When a surveyor comes knocking, it won’t matter if you gave the greatest, most comprehensive patient rights notices in the world in the patient’s preferred language if the clinician fails to document it.

Stay tuned: The forthcoming Interpretive Guidelines for the new CoPs may have more clarifications on the language requirements.

Note: See the 88-page CoP regulation at www.gpo.gov/fdsys/pkg/FR-2017-01-13/pdf/2017-00283.pdf.