New non-discrimination rule on language translation requires provider have a plan

by Roy Edroso on May 13, 2016

Along with its newsworthy LGQBT requirements, the Nondiscrimination in Health Programs and Activities final rule issued today by HHS' Office for Civil Rights (OCR)  also addresses federal health care providers’ responsibilities to patients with limited English language proficiency (LEP).

Among the (few) substantial changes: you have to be ready to serve such patients whether they’ve ever come to your practice before or not.

The final rule sticks pretty close to requirements laid out in the National Standards on Culturally and Linguistically Appropriate Services (CLAS), as Part B News has described in a previous article on the subject.

As in previous regulations, providers are expected to “take reasonable steps to provide meaningful access to” LEP patients -- but this rule adds the phrase “eligible to be served or likely to be encountered in its health programs and activities” to the description. Providers must be prepared for LEP patients “beyond those who actually walk into, or contact, that entity,” says the rule.

But you probably don’t need to hire translators. In fact, OCR isn’t even going to tell you what languages you should be ready to translate.

OCR says it considered “thresholds for written translation and/or oral interpretation as either a safe harbor or as an across-the-board minimum requirement,” including a hard percentage of languages spoken by the “limited English proficient population” in the provider’s county. But they decided to decline.

OCR does want you to take “reasonable steps” to ensure appropriate access to LEP patients. What’s reasonable? That’s up to the OCR Director (currently, Jocelyn Samuels), who will take into account “relevant factors,” including whether or not you have an “effective language access plan, appropriate to [your] particular circumstances.”

 “We note that a written language access plan has long been recognized as an essential tool to ensure adequate and timely provision of language assistance services, including compliance with the general obligation” in laws and regulations, says OCR.

What must the plan look like? OCR declined to “outline the minimum expectations for a language access plan… because that approach would be too prescriptive.”  Presumably the Director,  who has the authority to “evaluate” such plans, will know it when she sees it.

Neither does OCR set education standards for translators ("many interpreters who are currently unlicensed and uncertified are competent to translate…”). A qualified translator “translates effectively, accurately, and impartially; adheres to generally accepted translator ethics principles; and is proficient in both written English and at least one other written non-English language, including any necessary specialized vocabulary, terminology and phraseology...”

And the translator doesn’t have to be in the office; telephone services are OK. Automated or machine translation, however, are not, unless it’s on a written document and “only if a qualified translator reviewed the translation for accuracy and edited it as needed.”  As before, the patient's family members are not acceptable as translators for medical purposes.

Alas, OCR won’t pay for your translation plan or services – that’s “beyond the scope of this rulemaking" (though some Medicare contractors may let you bill for some of these services).

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