Applicable Provider Types: All
Is Your Entity in Compliance?
Recent regulatory language makes clear that most healthcare providers must provide free translators or interpreters for patients with limited English proficiency (LEP). This requirement stems from the U.S. Department of Health and Human Services Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services final rule published on May 6, 2024, on nondiscrimination (the 2024 rule) pursuant to Section 1557 of the Affordable Care Act. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in health programs or activities that receive federal funding, including Medicare and Medicaid.
National origin discrimination has been interpreted to include discrimination against people who speak languages other than English. While this is a new nondiscrimination regulation, it aims to strengthen protections for individuals with LEP and who are non-U.S. born in a way that is consistent with Title VI of the Civil Rights Act, which arguably may already have required such free translators and interpreters in the healthcare setting.
A covered entity must take reasonable steps to provide meaningful access and communication to everyone with LEP. This includes providing, for free and to the extent required, language assistance, qualified interpreters and translators, and other services such as translation of patient notices and forms. Covered entities may not require individuals with LEP to provide their own interpreter or rely on certain persons to translate, interpret or facilitate communication. These persons include adults or staff not qualified as interpreters and minor children. Nonqualified adults and minor children may only translate as a temporary measure in an emergency involving an imminent threat to the safety of an individual or the public, and the qualified interpreter that arrives must confirm or supplement the initial communications. Most of these requirements were in an earlier 2016 rule, and then removed in a 2020 rule.
Covered entities, which include healthcare providers participating in Medicare or Medicaid or contracted with a Medicare Advantage Plan, among others, already must comply with these requirements from the 2024 rule. Penalties for noncompliance can lead to fines, civil rights litigation or other corrective actions.
Additional requirements and future effective dates of the 2024 rule for other required changes, including notices to patients of the foregoing, are available in a previous article. Watch for a future Ounce of Prevention installment on requirements regarding access for individuals with a disability. This subject will be especially important given the Sept. 12, 2024, Notice of Violation from OCR to a Puerto Rican hospital for failing to provide an interpreter and provide auxiliary aides and services to a patient who is deaf.
Pending litigation brought by the states of Texas and Montana and Tennessee, among others, has delayed the effective date and enforcement of certain portions of the 2024 rule, which expands unlawful discrimination on the basis sex to include that based on gender identity and sexual orientation. Notices of appeal have been filed in all three cases. McGuireWoods will continue to monitor these cases and keep clients updated.
How to Confirm?
To ensure effective communication and accessibility for individuals with LEP, assess the required criteria under each question below:
- Are you providing translator and interpreter services?
- Services must be free to the patient with LEP.
- Services must be accurate and timely and protect the privacy and the independent decision-making ability of the individual with LEP.
- Are your translators and interpreters qualified? A qualified translator/interpreter must:
- Demonstrate proficiency in writing and understanding both written English and at least one other written non-English language. Qualified interpreters for relay interpretation (interpreting from one language to another through an intermediate language) must demonstrate proficiency in two non-English spoken languages.
- Be able to translate effectively, accurately and impartially to and from such language(s) and English, using any necessary specialized vocabulary or terms without changes, omissions or additions and while preserving the tone, sentiment and emotional level of the original written statement.
- Adhere to generally accepted translator/interpreter ethics principles, including client confidentiality.
- Do you provide high-quality services virtually or through telehealth that show real-time images and voice translation?
- Video and audio translator/interpreter services must be in real-time over a dedicated high-speed, wide-bandwidth connection or wireless connection that delivers high quality images and clear voice transmission. Many vendors offer such services to healthcare providers.
- Providers must ensure that their telehealth platforms allow interpreters or translators to join the session and avoid relying on patients to bring their own interpreter.
- Are you allowing family to facilitate communication?
- This is only allowed as a temporary measure in emergency situations.
- When a qualified interpreter arrives, they must confirm or supplement the initial communications with the family member.
- Are you using machine translation?
- In most cases, machine translations must be reviewed by a qualified human translator.
If you answer any of the foregoing questions with a “no” or “unsure,” you should make changes to your procedures to come into compliance with the 2024 rule. The foregoing requirements were active since July 5, 2024.
If you need assistance ensuring that your translation services are in compliance, McGuireWoods attorneys can assist.
Special thanks to summer associate Justina Zukauskaite who contributed to the alert. She is not licensed to practice law.
Ounce of Prevention is a McGuireWoods series that details healthcare laws and regulations and offers tips on how providers can ensure they are in compliance. To recommend a topic for a future installment, email Gretchen Heinze Townshend at [email protected] or Tim Fry at [email protected].