Title VI of the Civil Rights Act of 1964 prohibits conduct that has a disproportionate effect on Limited English Proficient persons (LEP) because such conduct constitutes national origin discrimination. HHS regulations require all recipient facilities of federal financial assistance to provide "meaningful access" to LEP persons. Recipient facilities may include hospitals, nursing homes, home health agencies, managed care organizations, universities and other entities with health or social services research programs and physicians and other providers that receive federal financial assistance. Federal financial assistance includes grants, training, use of equipment, donations of surplus property and other assistance.
In order for a recipient to determine the extent of its obligations to provide LEP services, the facility should apply a four-factor analysis and consider:
The number or proportion of LEP persons eligible to be served or likely to be encountered by the recipient’s program;
The frequency with which LEP individuals come in to contact with the recipient’s program;
The nature and importance of the program, activity or service provided by the recipient’s program to people lives; and
The resources available to the recipient facility and the costs involved.
The recipient facility is required to develop and implement a plan to deliver services to LEP based on the results of the analyses. Under the first factor, the greater the number or proportion of LEP persons served by the programs, the more likely the language services will be needed. The second factor requires that the more frequent the contact with a particular language group, the more likely that enhanced language services in that language are needed. The third factor concerns the importance and urgency of the program to the LEP individual. Emergency department services are so important and urgent that a denial or delay of access could have serious or even life-threatening implications. However, in the case of outpatient services or elective surgery, language services may be delayed for a reasonable period without adverse effects on the individual.
The fourth factor is consideration of the recipient’s level of resources and the costs of complying with the law. Reasonable steps may cease to be "reasonable" when the cost imposed substantially exceeds the benefits obtained. For smaller businesses, staff training, telephonic and video conferencing and use of centralized interpreting and translation services to achieve economies of scale may be necessary.
An interpreter need not be certified, but must demonstrate proficiency and the ability to communicate information accurately in both English and in the other language. An interpreter must follow confidentiality and impartiality rules, and use caution to remain in the role of an interpreter only, without deviating into other roles such as counselor or legal advisor. Where individual rights depend on precise, complete, and accurate interpretation, the use of certified interpreters is strongly encouraged. Family members or friends can act as interpreters but a recipient may not require an LEP person to use a family member or friend as an interpreter. Furthermore, family members may not be competent to provide accurate interpretations. Issues of confidentiality, privacy or conflict of interest may also arise. For example, if a woman or child is brought to an emergency department with injuries consistent with abuse or neglect, the use of a spouse or a parent to interpret may be inappropriate.
Recipients must also provide a translation service, which is written text from one language into an equivalent written text in another language of vital information. Examples of vital written materials that should be translated for the LEP are consent and complaint forms, in-take forms with the potential for important consequences, written notices of eligibility criteria concerning the denial, loss or decreases in benefits or services, and notices advising LEP persons of free language assistance.
The law provides "safe harbor" provisions. If a recipient takes certain affirmative actions toward translating vital documents, such actions will be considered strong evidence of compliance with the recipient’s written translation obligations. The safe harbor provisions provide (a) a recipient should provide written translations of vital documents for each eligible LEP language group that constitutes 5% or 1000 (whichever is less) of the population of LEP persons served or likely to be affected or encountered; or (b) if there are fewer than 50 persons in a language group that reaches the 5% trigger in (a), the recipient does not have to translate the written materials but must provide written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of those written materials, free of cost.
To assist recipients in identifying the language that needs to be communicated, language identification cards, or "I Speak Cards" are particularly helpful. For example, an "I Speak Card" might say "I Speak Spanish" in both Spanish and English. To reduce the costs of compliance, the Federal government has made a set of these cards available on the Internet. The Census Bureau "I Speak" website can be found at: http://www.esdaj.gov/crt/cor/13166.htm. In addition to helping employees identify the language of LEP persons they encounter, this process will help in future applications of the first two factors of the four-factor analysis, by identifying the number of LEP persons to be served and the frequency with which LEP individuals come in contact with the recipient’s program. More detailed information is available on the LEP website, www.lep.gov.
Martin Khoury, Esq. is a former ARRT Registered CT Technologist. He is available to speak to your group on a variety of medical and legal topics. Contact him by E-Mail at firstname.lastname@example.org. This column is meant for informational purposes only and should not be relied upon as legal advice.