Having interpretation services available for non-English-speaking customers is not only a good business practice, now it’s the law under the Affordable Care Act.
Effective October 16, 2016, all health care practices or programs that receive federal funding through Health and Human Services (HHS) programs, including but not limited to Medicaid and Medicare Parts A, C and D (excluding Medicare Part B) are required to provide interpretation and translation services for patients with limited English skills.
The new rules, which were published in May and effective in October, also apply to sex discrimination and discrimination against persons with disabilities, but for this post we will be focusing on the rules applying to persons with limited English proficiency.
In general, the rules are designed to ensure protected patients are not discriminated against or offered different treatment because of race, color, national origin, sex, age or disability. The new rules now add as a class of protected citizens: “an individual whose primary language for communication is not English and who has a limited ability to read, write, speak or understand English.”
The rules say health care providers must “take reasonable steps to provide meaningful access to each individual with limited English proficiency … likely to be encountered in its healthcare programs or activities.” The rules offer some discretion to providers with the term “reasonable steps,” based upon such issues as the complexity of the communication, the frequency your practice may face certain languages and the cost of providing certain language services.
Generally, practices can be considered in compliance if they offer telephone or video interpretation services to their greatest frequency of language requests, either based off a practice’s experience or the general demand in a certain geographic area.
The 15 Language Tagline
As part of the public notification requirements, each practice must post a short statement (“tagline”) in the 15 most commonly used, non-English languages in your state informing patients that language assistance services are available, free of charge.
A sample tagline suggested by HHS (but you are not required to use their language) is:
ATTENTION: If you speak [insert language], language assistance services, free of charge, are available to you. Call 1–xxx–xxx–xxxx (TTY: 1–xxx–xxx–xxxx).
HHS has published a table of the top 15 languages spoken in each of the 50 states and territories.
The practice also must have a written nondiscrimination notice (HHS published this sample notice) in place describing its non-discrimination practices, including the language provisions, but that document does not have to be in multiple languages.
If you have a website, this information must be featured on the website, either on the home page or through a visible link from the home page.
The new rules also require practices to offer a qualified interpreter (not required to be licensed or certified) either in person or via a remote interpretation service who can do the following:
- Adheres to generally accepted interpreter ethics principles, including client confidentiality
- Demonstrates proficiency in speaking and understanding both spoken English and [the relevant] spoken language; and
- Interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology. (45 C.F.R. § 92.4)
The rules also set standards for video interpreting to ensure the quality of the video service is sufficient to ensure the patient receives adequate care and information.
The rules also state that health care practices cannot:
• Require a patient to provide their own interpreter
• Rely on an adult accompanying the individual to be the interpreter unless there is an immediate threat to the patient or the public or the patient specifically requests that the adult provide interpretation, the adult agrees and the reliance on that adult would be appropriate
• Rely on a minor child to provide interpretation unless there is an emergency situation with an immediate threat to the patient or public.
• Rely on staff other than qualified interpreters to communicate with the patient.
The rules further define qualified interpreters as those who have the responsibility designated in their job description (no calling over internal staff to be an interpreter, unless he/she has met the above proficiency).
The rules also set down standards for individuals who are qualified to serve as translators for the practice’s written materials, either paper or electronic. A “qualified translator” is defined as someone who can do the following:
- Adheres to generally accepted translator ethics principles, including client confidentiality
- Demonstrates proficiency in writing and understanding both written English and at least one other written non-English language
- Translates effectively, accurately, and impartially to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology. (45 C.F.R. § 92.4)
A qualified interpreter may not necessarily qualify as a translator. HHS also warned against using machine translators without an accompanying qualified translator.
HHS has not designated specifically which written documents must be provided in other languages, though they indicated that “significant publications and significant communications” will need to be provided in multiple languages. This could include education, outreach and marketing materials; patient handbooks; notifications requiring response from patients; and written notices regarding rights or benefits.
Requirements for Larger Practices
Two more provisions in the new rules requires that practices with 15 or more employees must:
• Designate at least one employee to coordinate and carry out compliance with the non-discrimination regulations.
• Establish grievance procedures with proper due process standards to quickly and equitably resolve any grievances alleging violation of the regulations.
To help you understand more about the non-discrimination rules of the Affordable Care Act and how to ensure your practice is in compliance with the proper documents in place, contact us.