Are Your Services Accessible to All? Federal laws require health care providers to have—and post—nondiscrimination policies that include language-assistance services. Features
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Features  |   November 01, 2017
Are Your Services Accessible to All?
Author Notes
  • Daneen Grooms, MHSA, is director of ASHA health reform analysis and advocacy. dgrooms@asha.org
    Daneen Grooms, MHSA, is director of ASHA health reform analysis and advocacy. dgrooms@asha.org×
  • Carol Polovoy is managing editor of The ASHA Leader. cpolovoy@asha.org
    Carol Polovoy is managing editor of The ASHA Leader. cpolovoy@asha.org×
Article Information
Regulatory, Legislative & Advocacy / Features
Features   |   November 01, 2017
Are Your Services Accessible to All?
The ASHA Leader, November 2017, Vol. 22, 54-58. doi:10.1044/leader.FTR2.22112017.54
The ASHA Leader, November 2017, Vol. 22, 54-58. doi:10.1044/leader.FTR2.22112017.54
You are providing articulation treatment to an 8-year-old whose mother uses American Sign Language (ASL) to communicate. It’s difficult to explain to the mother about her son’s progress and homework. Can you ask her to bring her boyfriend to treatment sessions to act as an interpreter?
A woman complaining of tinnitus seeks your help. A recent immigrant from China, she speaks very little English. You don’t want the hassle and expense of using interpreters. Can you tell her that she needs to find another provider?
The answer in both of these fictional scenarios is “no”—if you accept Medicare (Part A or C) or Medicaid patients. Recent regulatory and judicial decisions emphasize that health care providers who receive federal reimbursement may not discriminate and must offer free language-translation services to any patient who needs them.
  • In one case, a U.S. District Court ruled that a person who needs interpretation services can sue a health care provider if the provider doesn’t provide a qualified interpreter.

  • In a second case, the Office of Civil Rights is requiring a skilled nursing facility to revise, publicize and report on its anti-discrimination policy.

Language assistance, nondiscrimination policies and other requirements are part of regulations developed by the Office for Civil Rights (OCR) of the Department of Health and Human Services. The regulations, which went into effect July 18, 2016, comply with the Affordable Care Act (ACA). Known as Section 1557, the provisions apply to any health program that receives federal money through grants, loans, credits, subsidies and insurance contracts. Reimbursement from Medicaid or Medicare (excluding Part B) is included under this law.

In one case, a U.S. District Court ruled that a person who needs interpretation services can sue a health care provider if the provider doesn’t provide a qualified interpreter.

Non-discrimination
The OCR and other regulations expand on policies in the Americans With Disabilities Act, the Civil Rights Act, the Rehabilitation Act and other laws that prohibit discrimination based on race, color, national origin, sex, age or disability (see “Beyond Word-for-Word Interpreting”).
The OCR also prohibits discrimination “on the basis of association”—that is, discrimination based on the race, color, national origin, age, sex or disability of someone in the patient’s family.
Patients may file complaints if they believe providers have discriminated against them. For example, OCR resolved a complaint in July alleging that Heritage Hill Living and Rehabilitation Center—a skilled nursing facility in McAlester, Oklahoma—violated Section 1557 of the ACA and Section 504 of the Rehabilitation Act by discharging a seriously ill patient from its facility when it learned she was HIV-positive.
In settling the complaint, OCR required Heritage Hill to adopt and publish a specific nondiscrimination policy, revise its admissions policy and grievance procedure, provide training to its staff on discrimination policies, keep records on referral and admissions of all patients with HIV, and report that the obligations of the agreement have been met.
Under the OCR rules, having a nondiscrimination policy is not sufficient. The OCR rules mandate that health care providers, including audiologists and speech-language pathologists, review and update their policies and post them in their offices and on their websites.

Providers can’t ask people to provide their own interpreters. Providers also can’t rely on an adult accompanying a patient to interpret.

Language-assistance services
Section 1557 regulations address language-assistance services for people with limited English proficiency (LEP). It requires health care providers and practices who receive Medicaid or Medicare funding to offer free, timely interpretation services to people who need them. And providers also must display the availability of these services in the 15 languages most commonly used in their state.
Providers can’t ask people with LEP to provide their own interpreters. Providers also can’t rely on an adult accompanying a patient with LEP to interpret, except in an emergency or if the patient specifically requests that the companion be allowed to interpret or facilitate communication. Patients can, however, decline the services of an interpreter.
The regulations also say that health care providers must provide “auxiliary aids and services”—a category that includes sign-language interpreters—to give people with disabilities an equal opportunity to benefit from services, programs or activities.
Patients can sue providers if they fail to comply with regulations. Kimberly Esparza, who is deaf and uses American Sign Language (ASL), claims in a civil suit that during visits for a broken arm, dental treatment and lab work from October 2017 through March 2017, University Medical Center New Orleans refused to provide a qualified in-person sign-language interpreter to help her communicate with staff and learn information about her health care.
Esparza alleges that her rights were violated under the Americans With Disabilities Act, the Rehabilitation Act and Section 1557 of the ACA because the hospital’s communication options—a video remote interpreting machine and written English notes—did not allow her to effectively communicate with hospital staff about her injuries, treatment, medication and other aspects of care.
The Louisiana State University Board—which owns the hospital—moved to dismiss, claiming that the 11th Amendment prohibits lawsuits by private parties against states in the federal courts. A judge in the U.S. District Court for the Eastern District of Louisiana denied the motion, and the case is moving forward.

Providers also must display the availability of language-assistance services in the 15 languages most commonly used in their state.

Who’s going to pay?
The regulations do not pay for language-assistance services. However, smaller providers with lower operating budgets are not expected to provide the same level of language assistance as larger providers. OCR looks at a provider’s entire financial picture—not just the cost of providing language services to a specific patient—in determining the financial burden that language assistance imposes on the provider.
OCR also encourages providers to collaborate to provide cost-effective, efficient language-assistance services and recommends two resources:
Medicaid providers in 15 states can receive reimbursement for language-assistance services: Connecticut, District of Columbia, Iowa, Idaho, Kansas, Maine, Minnesota, Montana, New Hampshire, New York, Texas (sign-language interpretation only), Utah, Vermont, Washington and Wyoming. Each state has its own processes and rules; providers should check with their state Medicaid office.
How to comply
OCR encourages—but doesn’t require—providers to have a language-access plan that they and their employees can easily implement if a patient needs language-assistance services. It should include how the provider determines a patient’s primary language, contact information for a telephonic oral interpretation service with qualified interpreters, contact information for a translation service with qualified translators, the types of language assistance services that may be required and the documents that should be routinely translated into different languages.
In addition to keeping interpreter and translator contact information at hand, a provider who serves a large Spanish-speaking population may, for example, stock up on standard forms that have been translated into Spanish. Or perhaps that provider hires an office manager who is a qualified Spanish interpreter.
Notice of nondiscrimination
  • They do not discriminate on the basis of race, color, national origin, sex, age or disability.

  • They will provide free, timely, appropriate aids and services, including qualified interpreters, for people with disabilities.

  • They will provide language assistance, including translated documents and free, timely, oral interpretation.

  • How clients can obtain aids and services.

  • The name and contact information of the employee designated as responsible for compliance with regulations (if the entity has 15 or more employees).

  • The availability of a grievance procedure and how to file a grievance if the entity has 15 or more employees.

Taglines and translated documents
Providers and facilities also must post taglines—a notification that free language-assistance services are available—in the top 15 non-English languages spoken in their state. (There is no requirement to post the “notice of nondiscrimination” in non-English languages, just the translated taglines indicating that free language assistance is available in those languages.)
The taglines must be posted conspicuously in offices and on websites. Providers can find the top 15 languages in any state and translated taglines and other documents online.
Providers’ significant publications and communications—such as brochures and pamphlets—must include a statement of nondiscrimination and taglines in the top two languages spoken by people in their state.
Providers also must have “vital” written documents—such as consent and complaint forms—translated by a qualified translator. The regulations do not define “vital,” but guidance indicates the definition depends on the importance of the program, information, encounter or service involved.
Health care providers can use a dedicated email address, 1557@hhs.gov, to contact OCR directly with questions about Section 1557. ASHA members may also contact ASHA staff in health care economics and advocacy (dgrooms@asha.org), multicultural affairs (multicultural@asha.org), audiology practices (audiology@asha.org) and speech-language pathology practices (healthservices@asha.org) for more information.
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November 2017
Volume 22, Issue 11