Foreign Language and Hearing Impaired Language Assistance

Foreign Language Assistance

A number of documents have been published in the Federal Register in the last year relating to cultural diversity and treatment of individuals with limited English proficiency. Among these are policy guidance for the enforcement of Title VI of the Civil Rights Act of 1964, published August 16, 2000, by the U.S. Department of Justice and published August 30, 2000, by the U.S. Department of Health and Human Services Office for Civil Rights, and a final report issued by the HHS Office of Minority Health. The following is a summary of the most significant issues.

U.S. Department of Justice

The policy guidance issued by the DOJ was directed toward government agencies that grant federal financial assistance. It directed those agencies to develop specific criteria for reviewing programs and activities for which they offer federal financial assistance. The purpose is to ensure that the recipients of the financial assistance comply with the provision in Title VI of the Civil Rights Act of 1964 that prohibits discrimination on the basis of national origin, specifically as it relates to individuals with limited English proficiency (LEP). This policy guidance was authorized under Executive Order 12250 and DOJ regulations.

According to the policy guidance, Title VI requires the recipients of federal financial assistance to ensure that language barriers do not exclude LEP individuals from effective participation in benefits and services offered by those recipients. According to the DOJ, recipients of federal financial assistance must take "reasonable steps" to ensure "meaningful access" to their information and services. In determining whether recipients have taken reasonable steps, the DOJ suggests consideration of several factors.

• the number or proportion of LEP individuals served
• how often LEP individuals have contact with the program (i.e., daily versus infrequently)
• the nature and importance of the program
• the resources available to the recipient of financial assistance to provide language services

Office of Civil Rights

The Health and Human Services OCR published policy guidance two weeks after the DOJ published its policy guidance. The OCR’s guidance begins by clarifying who is covered by the guidance. Health care institutions, such as hospitals, are covered if they receive federal financial assistance, either directly or indirectly, through a grant, contract or subcontract. This includes receipt of Medicare and Medicaid.

• a thorough assessment of the language needs of the population served
  
• a written policy on language access that includes, for example:
  
  • oral language interpretation
    
  • translation of written materials
    
• methods for notifying LEP individuals about their right to language assistance (For example, language identification cards)
  training of staff
  
• periodic monitoring, at least annually, of the language assistance program

The OCR has created a "safe harbor" regarding the Title VI obligation to provide written materials in non-English languages. If a hospital meets the safe harbor criteria, it will be deemed in compliance. If a hospital does not meet the safe harbor criteria, it still may be in compliance but would be judged on a case-by-case basis. The safe harbor is defined on the basis of the number of LEP individuals in the particular population eligible to be served or likely to be affected (eligible population) by the covered entity’s program.

• If at least 10 percent or 3,000 (whichever is less) of the eligible population belongs to a particular LEP language group, the hospital must provide translated written materials, including vital documents.

• If at least 5 percent or 1,000 (whichever is less) of the eligible population belongs to a particular LEP language group, only vital documents must be translated in writing. Other documents may be translated orally if needed.

• If fewer than 100 people in the eligible population belong to a particular LEP language group, a hospital need not provide written translated documents but must provide notice of the LEP individuals’ right to have documents orally translated.

The first part of the safe harbor language is unclear in terms of which documents must be translated. It merely states that if at least 10 percent or 3,000 people in the eligible population belong to a particular LEP language group, an entity that translates "written materials," including vital documents, would be deemed to be in compliance with Title VI. Vital documents appear to be a subset of "written materials" but it is unclear what other materials are included.

Vital documents include the following types of items.

• applications
• consent forms
• letters containing information regarding eligibility or participation criteria
• notices pertaining to reduction, denial or termination of services or benefits that require a response from beneficiaries and/or advise of free language assistance
• vital portions of large documents, such as enrollment handbooks

Besides requirements regarding written materials, the policy guidance specifies that oral interpreters must be competent. However, the guidance does not require formal certification of interpreters. It specifies that hospitals should ordinarily not use friends, family or minor children as interpreters. There is an exception if the patient declines the hospital’s interpreter services and specifically requests the use of a family member or friend if it does not compromise the effectiveness of the services or violate the patient’s confidentiality. The concern about confidentiality seems misplaced, because the patient is the one requesting the presence of the family member or friend, which would clearly waive any requirement of confidentiality. In any event, the offering and declining of interpreter services should be documented.

The rest of the policy guidance provides examples of how the law will be enforced, a list of "promising practices," a model plan and enforcement information. From a procedural standpoint, the OCR intends to investigate all complaints and make a determination of compliance or noncompliance. In cases of noncompliance, the OCR will attempt to resolve the issue through informal means. If that is unsuccessful, the OCR will proceed with formal termination of federal assistance after the covered entity has an opportunity for an administrative hearing, referral to the DOJ or any other enforcement procedures "authorized by law."

Office of Minority Health

On December 22, 2000, a "final report" was issued by the OMH regarding "national standards" on "culturally and linguistically appropriate services." The report encompasses not only language services but also "culturally appropriate services." The term "culturally and linguistically appropriate services" is defined as health care services that are respectful of and responsive to cultural and linguistic needs.

This report apparently has no force of law but is merely a description of "mandates" already required by law; "guidelines," which are recommended by the OMH for adoption as mandates by federal, state and national accrediting agencies; and "recommendations," which are suggested by the OMH for voluntary adoption by health care organizations.

The mandates primarily relate to language services. For example, the report indicates that the law requires health care organizations to do the following.

• provide language assistance services to all LEP patients
• provide notice in the LEP patients’ preferred language of their right to receive language assistance services (notices must be both verbal and in writing)
• provide competent language assistance services (without using family or friends)
• provide patient-related materials and signs in commonly encountered languages

With respect to the first mandate, the report indicates that oral interpretation services must be provided to all LEP patients, regardless of the size of the particular language group. This is generally consistent with the OCR’s policy guidance, but it is not stated quite so clearly there. The report states that bilingual staff are the preferred source of interpreters, followed by trained interpreters that are either on staff, independent contractors or volunteers, and finally, telephone interpreter services for less regularly encountered languages.

The second mandate requires a hospital to provide notice to patients of their right to receive language assistance services, including an interpreter and written materials. These notices must be provided orally and in writing and must include signage. The written information must be provided in a language the individual patients can understand. However, it appears that signs need be posted only in regularly encountered languages.

The third mandate requires that language assistance services be provided competently. If a hospital uses interpreters or bilingual staff, it should verify the competency of those individuals to provide interpretive services. The use of family and friends as interpreters is prohibited unless requested by the patient, as long as the effectiveness of the services is not compromised or the person’s confidentiality is not violated. The OMH suggests that a trained interpreter be present, as well, but it is really the patient’s choice. The OMH states that minor children should never be used as interpreters, even for their parents. It seems, however, that parents have a right to choose for themselves or for the child whom they want as an interpreter.

The final mandate from the OMH states that health care organizations must provide certain information in commonly encountered languages (languages used by a significant number or percentage of the population in the service area). Specifically, hospitals must make available easily understood patient-related materials and post signage relating to a variety of patients’ rights and directions to facility services.

The OMH also provides a number of "guidelines" (items recommended by the OMH for adoption as mandates by federal, state and national accrediting agencies). These guidelines address the following issues.

• providing effective, understandable and respectful care
• hiring a diverse staff
• providing ongoing staff training in culturally and linguistically appropriate service (CLAS) delivery
• developing a written strategic plan relating to CLAS
• conducting self-assessment of CLAS-related activities
• developing collaborative partnerships with communities
• ensuring that conflict and grievance processes are culturally and linguistically sensitive

Finally, the OMH provides one "recommendation" or suggestion for voluntary adoption by health care organizations. It suggests that health care organizations make available to the public information about the availability of CLAS.

In summary, the DOJ has provided general principles for agencies to apply in developing Title VI guidelines for recipients of federal financial assistance. According to the DOJ, the principles do not impose new obligations but rather clarify existing Title VI obligations. The OCR has published policy guidance which it also maintains does not impose any new requirements but merely "reiterates long-standing Title VI principles that OCR has been enforcing for over 30 years." Finally, the OMH has provided some standards that it maintains are required under Title VI, some standards it believes should be required, and some standards it believes health care organizations should initiate on their own. Though "policy guidance" and "final reports" are not considered "law," they shed light on how the law will be enforced.

In the meantime, an effort has been made to legislatively repeal the executive order that is the basis for the policy guidance from the DOJ, OCR and OMH. The legislation is currently before a committee.

Hearing Impaired Assistance

There are both federal and Missouri laws that apply to providing interpreters for hearing-impaired individuals. The Americans with Disabilities Act, as well as other federal laws, prohibit discrimination against individuals with disabilities. Under the ADA, hospitals are required to provide reasonable accommodation to patients with hearing disabilities. Missouri law requires hospitals to provide individuals with hearing disabilities the same accommodations as those without such a disability. Providing such accommodation under federal and state law could include providing interpreters, phone systems that allow hearing impaired persons to make and receive telephone calls, and televisions with captioning capabilities.

A settlement in a class action lawsuit involving 32 Connecticut hospitals a few years ago demonstrates just how much hospitals may be obligated to do. In that case, the plaintiffs alleged that the hospitals were violating the ADA by not providing sign language interpreters. The DOJ intervened in the action and also signed onto the settlement agreement in the case.

Under the agreement, the Connecticut hospitals agreed to do the following.

• establish a statewide, on-call system to provide qualified sign language and oral interpreters, 24 hours a day, seven days a week, through a nonprofit agency in Connecticut
• provide telecommunication devices for the deaf that enable individuals who are deaf or hard of hearing to use public telephones throughout the hospitals, and, when requested, in patient rooms
• install visual alarms where audible alarms are already provided
• train employees and volunteers about issues relating to communication with individuals who are deaf or hard of hearing
• post signs stating that the hospital will provide sign language interpreters and other auxiliary aids and services free of charge to individuals who are deaf or hard of hearing
• offer training to all affiliated physician
• designate an information office and program administrators to implement all aspects of the agreement and to provide information to the public

Fourteen of the Connecticut hospitals agreed to pay $330,000 in compensation to individuals who were affected by the hospitals’ failure to provide effective communication in the past and $20,000 in attorney fees. One concern in Connecticut was a lack of qualified interpreters. This could be of particular concern in Missouri, where a person must actually be licensed as an interpreter to provide interpretive services, unless such services are being performed in a "casual setting" or "incidental to traveling."

As part of the settlement, the DOJ agreed to provide pictograms to Connecticut hospitals to assist them in providing notice to hearing-impaired individuals of their rights to interpreters and auxiliary aids. Those pictograms have been made available to hospitals in Connecticut. The DOJ intends to make the pictograms available to hospitals in other states at some time in the future.

In summary, the guidance relating to LEP individuals and the settlement in the Connecticut case indicate a trend toward holding hospitals to their obligation to make health care services equally available to all individuals, regardless of national origin or disability. The MHA will continue to monitor this trend and provide enforcement information as it becomes available. In the meantime, hospitals should begin formulating plans for providing appropriate language assistance services including relevant policies and procedures.

For further information, contact MHA's legal staff.