ACA Interpreter Rules About to be Animated

        In May, the federal government announced “final” versions of new Affordable Care Act Regulations prohibiting discrimination in connection with implementing the Act. A lot of publicity surrounded the Regulations’ expansion of the concept of “sex discrimination” to include gender identity issues – and that portion of the Rules is currently being challenged in a federal court action¹ filed August 23. Another series of rules that have received less publicity is included in this package; and, unless you already have in place a robust program for providing interpretive services to patients, it would be prudent to take a look at these Regulations.

        The specific rule provides:  “A covered entity shall take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in its health programs and activities.” ²

 

        It includes a hospital, health clinic, a private physician, or a nursing facility, among others, if the entity receives federal financial assistance under Medicaid or Medicare Parts A, C, or D [but not B].

 

        Any individual whose primary language for communication is not English and who has a limited ability to read, write, speak, or understand English is entitled to the benefit of the Rule.  A health care provider is required to offer a “qualified interpreter” when oral interpretation is a reasonable step to provide meaningful access for that individual; and, is further required to use a qualified translator when translating written content in paper or electronic form.

 

        Yes. What’s significant is that the Rules are now more particular about who does the interpreting.

        The health care provider may not require the patient to provide his own interpreter. Nor can the health care provider rely on an adult accompanying the patient to interpret or facilitate communication, except:(i) in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for patient immediately available; or (ii) where the patient specifically requests that the accompanying adult interpret or facilitate communication, assuming both that the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.
 

        Moreover, the health care provider may not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the patient immediately available.

And, the health care provider may only use a staff member to interpret if that staff member is “qualified bilingual/multilingual staff.” That means that the staff member has been officially designated to provide interpreting services as part of the employee’s official job duties, based on having actually demonstrated that he/she is proficient in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized vocabulary, terminology and phraseology, and that he/she is able to effectively, accurately, and impartially communicate directly with individuals with limited English proficiency in their primary languages.

 

        A decision can be made to fulfill this requirement by video interpreter – but, then, the provider must satisfy these criteria:

(1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; 

(2) A sharply delineated image that is large enough to display the interpreter’s face and the participating individual’s face regardless of the individual’s body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the video remote interpreting.

 

In addition to these standards, the Regulations contemplate that, by October 16 of this year, health care providers will be posting a notice (in 15 languages), informing their patients of these rights. 

 

The text of the Notice can be found at 

http://www.hhs.gov/sites/default/files/sample-ce-notice-english.pdf; and various translations can be found at:

http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html. 

 

These notices will also be required in two languages:

 

 

        In addition, covered entities with 15 or more employees are also required to appoint at least one employee as a compliance officer to investigate complaints of violations of these rules. And, a specific grievance procedure must be put in place for that individual to follow. The procedure which the Government has specifically approved can be found at: http://www.hhs.gov/sites/default/files/section1557-sample-grievance-procedure.pdf 

 

        Going forward, in completing applications for participation in federal programs, healthcare entities will be required to affirmatively represent that they are in compliance with these standards³. HHS may also require participants to take remedial actions and/or may assert damages for failure to comply. Further, individuals may sue for discrimination if they have not received the assistance now legally required. In all those respects, whether the healthcare provider has developed an appropriate written plan for complying with these requirements will be one of the factors in weighing the provider’s compliance. So, given that the public notices are expected to be up by October 16, it would be prudent to take action now to formally address these requirements.

¹Franciscan Alliance, Inc. v. Burwell, No. 7:16-cv-00108 (N.D. Tex.).
²42 CFR 92.201(a).
³ The full text of the Regulations, including HHS’s explanations of how it developed the language can be found at: https://www.federalregister.gov/articles/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities?utm_campaign=subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov