United States: Healthcare Provider Obligations For Individuals With Limited English Proficiency

Last Updated: January 13 2017
Article by Jaklyn Wrigley

This summer I wrote about the dangers of English-only policies in this age of multiculturalism (for more, click here). These policies tend to emerge more frequently in the healthcare workplace, the reason being – the provision of quality care is the utmost goal and sometimes that requires everyone to speak the same language. But, what happens when it is the patient who is culturally diverse from the workforce? What must healthcare providers do in response? The Department of Health and Human Services has the answer: covered entities must provide language services to people whose primary language is not English in a more robust way than ever before.

A Lesser Standard of Care for Non-English Speakers?

Within the medical and scientific communities, it is well settled that language barriers can hinder one's access to healthcare services and can compromise the quality of care received. Unfortunately, this often translates to increased adverse outcomes among non-English speaking patients. While federal law (e.g., Title VI of the Civil Rights Act, Executive Orders, and the Emergency Medical Treatment and Active Labor Act) has long required healthcare providers to make care accessible to individuals with Limited English Proficiency (LEP), these requirements were – at least arguably – somewhat relaxed. For example, until recently, healthcare providers were only required to provide translation services in a "competent" way. So a bilingual nurse, family member or other informal translator may have been sufficient, even if there had been no training or certification, or knowledge of specialized medical terminology.

Given the rapidly changing demographics of the United States and data suggesting that patients with LEP were still receiving substandard care (in addition to a surplus of other issues), the Obama Administration set out to drastically reform the country's healthcare system . In 2010, the now famous (or infamous, depending who you ask) Affordable Care Act (ACA) became law.

Section 1557 of the Affordable Care Act Mandates (More) Meaningful Access

At this point, we have all heard of the ACA, perhaps better known of as Obamacare. There is a good chance that you are also familiar with Section 1557 of the ACA, along with HHS's May 2016 Final Rule implementing it, which prohibits discrimination by "covered entities" on a variety of bases (e.g., because of one's national origin) in the provision and/or administration of certain health programs and activities. In fact, one of the sexier aspects of the Final Rule – that is, the part that literally deals with discrimination because of sex – has garnered significant national media attention lately (for more on that, click here). But, there is a chance you are unfamiliar with one of the less glamourous provisions of the Final Rule: the provision that protects individuals with LEP. It is through this provision that the ACA seeks to better accommodate the needs of an increasingly diverse patient population.

As part of its prohibition of discrimination on the basis of one's national origin, the Final Rule implementing Section 1557 of the ACA requires covered entities (i.e., virtually every healthcare provider) to provide meaningful access to each individual with LEP who is eligible to be served or likely to be encountered within the entities' health programs and activities. Notably, this can apply to certain family members of the patient, even if the patient does not require this access himself.

According to HHS, what constitutes "meaningful access" is flexible and content-specific. This may include providing oral language assistance via qualified interpreters. But, it may not include the use of low-quality video remote interpreting services or reliance on unqualified staff or translators, no matter how "competent" they might be. Section 1557, through the Final Rule, also obligates covered entities to post translated information informing individuals with LEP of their rights and that language assistance services are available free of charge. To minimize the burden of providing this information in a compliant way, the Office for Civil Rights (OCR) has prepared translated resources for a covered entity's use (available here).

Failure to Comply Can Be Bad for Business

While some of the earlier vehicles requiring the delivery of meaningful access to healthcare to individuals with LEP allowed for a private right of action, the complained of conduct generally had to be "intentional." This is no easy burden. Section 1557 of the ACA – through the Final Rule implementing it – expanded this private right of action, such that patients can now file suit over discrimination that is unintentional. Or, as we say in the employment law world: claims for disparate impact. These claims are typically easier to prove and open the door for class-based lawsuits. It should be obvious that an easier burden plus multiple plaintiffs (plus possible compensatory damages and attorneys' fees) equals increased cost.

Aside from individual (or class-based) lawsuits, the government can also compel compliance. The penalty for non-compliance can be as insignificant as mandated implementation of a language access plan (i.e., the plan that speaks to an organization's language access capabilities), or as serious as a total loss of federal funding. Also obvious: that healthcare providers want to avoid the latter, potentially calamitous consequence.

The Trump Card and Practical Tips for Minimizing Risk

The requirement that a covered entity provide meaningful access to individuals with LEP under Section 1557 has been in effect since October 2016 (though, there are differing deadlines associated with Section 1557 compliance, depending on the provision). While perhaps not at the top of the OCR's priority list, Section 1557 (including, but not limited to the requirements discussed in this article), are being enforced. To avoid a visit from the government or a class action lawsuit by an enterprising plaintiff's attorney, healthcare providers will want to have their culturally diverse houses in order. To do this, covered entities should ensure the required notices are posted, evaluate the nature and importance of the covered health program and how it is being communicated, and consider whether the implementation of a language access plan is appropriate. Covered entities should also train the appropriate staff on their Section 1557 obligations.

There is one other thing that further complicates matters: the Trump card. And, of course by "card," I mean President-Elect. President-elect Trump has frequently communicated his commitment to repeal and replace the ACA. To further this goal, he has chosen Rep. Tom Price (R-GA) – an outspoken opponent to the ACA – to head HHS in his administration. Speaker Paul Ryan has also promised to repeal the ACA, and is already taking steps to achieve this. Given the Republican-controlled Congress, there is a strong likelihood that at some point the ACA will be repealed. If and when that occurs, the requirement that healthcare providers provide more meaningful access to individuals with LEP will return to the pre-2010 standards (or will be determined by whatever "replacement" option goes into effect). What this means for healthcare providers, as well as the increasingly diverse patients to whom they provide care, remains to be seen. Despite this uncertainty, healthcare providers are strongly cautioned against using the "wait and see" approach. As discussed above, the penalties can be bankrupting.

Ultimately, determining the best option for your organization depends on a variety of factors. The result, however, is the same, and the requirement that you provide meaningful access is not going away. Neither is the risk for failing to do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jaklyn Wrigley
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.