What a Health Program Owes a Patient Who Does Not Speak English

Answer first: reasonable steps to meaningful access, free of charge

The general requirement is one sentence and it sets the standard everything else serves.

A covered entity must take reasonable steps to provide meaningful access to each individual with limited English proficiency. That includes companions with limited English proficiency, and it reaches anyone eligible to be served or likely to be directly affected by its health programs and activities.

The companion clause matters. A companion is defined as a family member, friend or associate of someone seeking access who, along with that individual, is an appropriate person for the entity to communicate with.

Then three conditions on the services themselves. They must be provided free of charge, be accurate and timely, and protect the privacy and the independent decision-making ability of the individual.

Independent decision-making is doing specific work in that sentence, and the restrictions later in the section are where it becomes concrete.

Who counts as qualified, and it is a defined test

Both interpreter and translator are defined terms, and neither definition is about self-description.

A qualified interpreter, whether remote or on site, has demonstrated proficiency in speaking and understanding spoken English and at least one other spoken language.

The second requirement is the demanding one. The interpreter is able to interpret effectively, accurately and impartially to and from those languages. That means using any necessary specialized vocabulary or terms without changes, omissions or additions, and preserving the tone and sentiment of the original.

A qualified translator is the written counterpart. Demonstrated proficiency in writing and understanding written English and at least one other written language. Able to translate effectively, accurately and impartially without changes, omissions or additions, while preserving tone and sentiment.

And the translator definition adds an ethics clause. Adherence to generally accepted translator ethics principles, including client confidentiality.

The requirement follows from the definitions. When interpretation services are required, the entity must offer a qualified interpreter. When translation services are required, it must use a qualified translator.

Four things an entity may not do

The restrictions section is the part a patient is most likely to run into, and it is a list of prohibitions.

It may not require an individual with limited English proficiency to provide their own interpreter, or to pay the cost of one.

It may not rely on an adult who is not qualified as an interpreter to interpret or facilitate communication, subject to two narrow exceptions.

It may not rely on a minor child, with one narrow exception. That is as a temporary measure while finding a qualified interpreter, in an emergency involving an imminent threat to safety or welfare, where no qualified interpreter is immediately available. The qualified interpreter who arrives must then confirm or supplement what the child conveyed.

And it may not rely on staff other than qualified interpreters, qualified translators, or qualified bilingual or multilingual staff to communicate with individuals with limited English proficiency.

That last one is broader than people expect. A bilingual employee who has not been established as qualified is not an answer under this section.

The two exceptions for an accompanying adult

Both exceptions to the adult prohibition are worth reading in full, because they are narrower than the practice they replace.

The first is emergency and temporary. As a temporary measure while finding a qualified interpreter, in an emergency involving an imminent threat to the safety or welfare of an individual or the public. It applies where no qualified interpreter is immediately available, and the qualified interpreter who arrives confirms or supplements the initial communications.

The second is a request, and it has four conditions stacked on it.

The individual with limited English proficiency specifically requests it, in private, with a qualified interpreter present and without the accompanying adult present.

The accompanying adult agrees. The request and the agreement are documented. And reliance on that adult is appropriate under the circumstances.

In private, with a qualified interpreter present, and without the accompanying adult in the room. That construction is the section's answer to a family member volunteering to translate on someone's behalf.

Machine translation has a stated limit

One paragraph addresses automated translation directly, and it is short.

A covered entity may use machine translation in three situations only with review. When the underlying text is critical to the rights, benefits or meaningful access of an individual with limited English proficiency. When accuracy is essential. Or when the source documents or materials contain complex, non-literal or technical language. In those, the translation must be reviewed by a qualified human translator.

Three triggers, any one of which is enough. Critical to rights, benefits or meaningful access. Accuracy essential. Complex, non-literal or technical language.

The definitions section defines the term it is regulating. Machine translation means automated translation without the assistance of, or review by, a person.

Consent forms, benefit denials, dosing instructions and billing notices all sit close to at least one of those three triggers. The requirement is human review, not a ban.

Remote interpreting has technical requirements

This is unusual in a civil rights regulation and it is specific enough to check.

Video remote interpreting must provide real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video or wireless connection. It has to deliver high quality video images that do not produce lags, choppy, blurry or grainy images, or irregular pauses in communication.

It must provide a sharply delineated image large enough to display the interpreter's face and the participating person's face regardless of body position.

It must provide clear, audible transmission of voices, and adequate training to users of the technology and other involved persons so they can quickly and efficiently set up and operate it.

Audio remote interpreting carries the parallel requirements: real-time audio over a dedicated high-speed, wide-bandwidth connection delivering high-quality audio without lags or irregular pauses, clear audible transmission of voices, and adequate training.

Both paragraphs open with the same condition. The entity must ensure the modality allows for meaningful access. Technology that meets none of those descriptions does not satisfy the section by being present.

The notice, and where it has to appear

A separate section requires a notice of availability, and it prescribes both content and placement.

At minimum the notice states that the entity provides language assistance services and appropriate auxiliary aids and services free of charge in its health programs or activities. That is where necessary for compliance, and it runs to participants, beneficiaries, enrollees and applicants, and to members of the public.

It must be provided in English and in at least the fifteen languages most commonly spoken by individuals with limited English proficiency in the relevant state or states where the entity operates. It must also be provided in alternate formats for people who need auxiliary aids.

Placement is listed. Annually to participants, beneficiaries, enrollees and applicants. On request. At a conspicuous location on the entity's health program or activity website, if it has one.

And in clear and prominent physical locations, in no smaller than 20-point sans serif font, where it is reasonable to expect people seeking service to read or hear it.

That website line is the one worth remembering. If the section applies to an entity, the notice belongs somewhere conspicuous on the site, not only in a packet.

Eleven documents the notice has to ride along with

The same section lists specific communications that must carry the notice when the entity provides them, and the list reads like a tour of a patient's paperwork.

The notice of nondiscrimination, and the notice of privacy practices required by the health privacy rule.

Application and intake forms.

Notices of denial or termination of eligibility, benefits or services, including explanations of benefits, and notices of appeal and grievance rights.

Communications about an individual's rights, eligibility, benefits or services that require or request a response, and communications related to a public health emergency.

Consent forms and instructions related to medical procedures or operations, medical power of attorney, or a living will, with an option to provide a single notice for bundled documents.

Discharge papers. Communications about the cost and payment of care, including medical billing and collections materials and good faith estimates. Complaint forms. And patient and member handbooks.

Opting out, and what it does not waive

There is a compliance option that lets an entity stop sending the notice to a particular person, and it comes with guardrails.

The entity may annually give the individual the option to opt out of receiving the notice in their primary language and through appropriate auxiliary aids.

Four conditions attach. It may not condition receipt of any aid or benefit on the decision to opt out. It must inform the individual of the right to receive the notice on request in their primary language. It must inform them that opting out is not a waiver of the right to language assistance services or auxiliary aids. And it must document the opt-out annually.

One line closes the obvious shortcut. A non-response may not be treated as a decision to opt out.

The alternative compliance route starts by documenting the person's primary language and appropriate auxiliary aids. The entity then either provides all materials and communications in that language, or provides the notice in that language across the listed communications.

And nothing requires anyone to accept help. The section says nothing in it shall be construed to require an individual with limited English proficiency to accept language assistance services.

Disability, telehealth, and how compliance is judged

Three related provisions round out the picture without repeating what other pages cover.

Communication with individuals with disabilities has its own requirement. Appropriate auxiliary aids and services must be provided where necessary to afford an equal opportunity to participate. They go free of charge, in accessible formats, in a timely manner, and in a way that protects the privacy and independence of the individual.

Reasonable modifications to policies, practices or procedures must be made where necessary to avoid discrimination on the basis of disability. The exception is where the entity can demonstrate that doing so would fundamentally alter the nature of the program or activity.

Telehealth gets a single sentence of its own. A covered entity must not, in delivering its health programs and activities through telehealth services, discriminate on the basis of race, color, national origin, sex, age, or disability.

And there is a standard for judging the language obligation. In evaluating whether an entity met it, the Director evaluates and gives substantial weight to two things. The nature and importance of the health program or activity, and the particular communication at issue, to that individual. Other relevant factors are taken into account too, including the effectiveness of the entity's written language access procedures.

Enforcement runs through existing civil rights machinery. The mechanisms available under four named statutes apply for these purposes.

What this page does not tell you

Three boundaries, stated where you can see them.

Everything above is drawn from the text of one federal nondiscrimination regulation. No company was examined and no seller is named.

Whether any particular program is covered is not decided here. The regulation defines a covered entity as a recipient of federal financial assistance, the Department, or an entity established under one title of the health reform statute. Whether a given company receives federal financial assistance is a fact about that company, and it was not checked.

And two sections of this same part are covered on a different page. The ones on patient care decision support tools and on accessibility of information and communication technology are deliberately not described here.