Language Access Obligations and COVID-19-Related Resources

Hospital Action Required

To:                      Chief Executive Officers, Legal Counsel, and Government Affairs Staff
                            Please forward to staff and departments responsible for language access services
                  
From:                 Jaclyn Greenberg, JD, LLM | Policy Director, Legal Affairs
                            JaclynG@wsha.org  | (206) 216-2506

Subject:            Language Access Obligations and COVID-19-Related Resources

Purpose

The purpose of this bulletin is to provide hospitals and health systems with resources to ensure effective communication between the facility and individuals, including patients, people eligible to become patients, and their companions who have limited English proficiency (LEP) and/or who have communication disabilities, such as being blind, deaf, hard of hearing, or deaf-blind. WSHA recommends that hospitals review their existing language access resources in light of COVID-19 and make changes, as appropriate.

Applicability/Scope

All hospitals, as recipients of federal funding, are subject to federal anti-discrimination laws, including mainly Section 1557 of the Affordable Care, the Americans with Disabilities Act (ADA), and the Civil Rights Act of 1964. Hospitals in Washington State are also subject to Washington’s anti-discrimination law, RCW 49.60, as places of public accommodation.

Federal anti-discrimination laws require hospitals to facilitate effective communication with persons with LEP and/or communication disabilities, including but not limited to providing aids and services such as interpreters and translated documents. Washington State law also prohibits discrimination. These laws are unchanged by the ongoing federal and state public health emergency.

Recommendation

Review the resources included in the bulletin and evaluate what aids and services help further your hospital’s facilitating effective communication with people with LEP and/or communication disabilities during the COVID-19 pandemic.

Overview

Hospitals must comply with anti-discrimination laws at all times and must not discriminate against individuals, including on the basis of national origin or disability. National origin includes limited English proficiency. Hospitals must take steps to effectively communicate with people with LEP and/or communication disabilities and to provide individuals with meaningful access to programs, activities, benefits, services, and vital information. The goal is to ensure that communication with these people is equally effective as communication with people who speak English and are without disabilities. Policies or practices that appear neutral but have a disproportionate impact on the protected groups are also prohibited.

• For a one-pager from the US Department of Health and Human Services (HHS) summarizing the obligations under Section 1557 with respect to language access for persons with LEP, see here.

• For a summary of the requirements for effective communication with people with communication disabilities under the ADA, see here.

The federal and state agencies that enforce nondiscrimination laws have made it clear that these laws are in effect and unaltered during the ongoing public health emergency. The HHS Office of Civil Rights (OCR) has issued three bulletins on the topic since the start of the pandemic. Most recently, on May 12, 2020, OCR stated:

“[Federally funded entities] must take reasonable steps to provide meaningful access to individuals with LEP eligible to be served or likely to be encountered in their health programs and activities. This longstanding obligation is not waived during a National Emergency. Reasonable steps may include written translations of documents, or oral language assistance from a qualified interpreter, either in-person or using remote communication technology.” (Bulletin)

In its bulletin, OCR identifies a list of ways entities can ensure effective communication and therefore meaningful access to services for persons with LEP and/or communication disabilities. The following table sets out some of those suggestions with links to corresponding resources related to COVID-19. Below that is a list of relevant guidance documents and other resources. These resources are additive to hospitals’ existing language access services.

OCR suggested aids, services and supports	Resources
Contract with qualified interpreters for language access services through multiple types of media (telephone interpretation, video remote interpreting, etc.) * Note: Relying on informal interpreters, such as family members or caregivers, should be the exception rather than the rule, based on the service to be provided and the context in which they are provided (e.g. emergencies where obtaining qualified interpreters is not feasible)	Interpreter and Translator Directory – Washington State Coalition for Language Access (WASCLA) List of Interpretation Vendors (WA-DSHS) Interpreter services – temporary changes during COVID-19 (WA-HCA) Sign language interpreters – solutions during COVID-19 (WA-DSHS)
Disseminate COVID-19 information and messaging about testing and treatment in plain language and in the non-English languages prevalent in your community. *Note: DOJ provides a “Safe harbor” if vital documents are translated into the non-English languages spoken by 5% or 1,000 of people eligible or likely to be affected or served, whichever is less.	Map App – (DOJ) – to identify the number/percentage of LEP persons by language, in your county WA COVID-19 Language Access Plan (pg. 4 identifies the top 37 languages spoken in Washington by people with LEP) COVID-19 Educational Materials – 26+ Languages (WA-DOH) COVID-19 resources – 33 languages, including American Sign Language (ASL) (King County) Translated resources (general, not COVID-specific) (OCR) COVID 19 (CDC) ASL video series (CDC) COVID-19 Guidance – 60+ languages (UK-NHS)
Post COVID-19 documents in multiple languages in multiple locations, including at the initial point of contact.
Offer services in the languages spoken in your community and provide notices of such services online, in advertisements and at points of service. *Note: hospitals are required to post notice and taglines (i.e. short statements written in non-English languages) alerting LEP populations to the availability of language access services.  The taglines must be translated into the top 15 non-English languages in the state.
Use “I Speak” resources or ask open-ended questions to determine an individual’s written and spoken language preference	I Speak Cards  (WASCLA) I Speak Booklet (LEP.GOV)

 

In addition, the following organizations and agencies have prepared general guidance documents for ensuring language access for persons with LEP and/or communication disabilities:

• The National Association for the Deaf (NAD) has recommendations for hospitals to ensure language access for the deaf, deaf-blind, and hard of hearing, including lists of technological aids organized by populations, specifically people who use sign language; people who speak, listen and lip-read; and, people who are deaf-blind. Hospitals may also want to review NAD’s position statement on minimum standards for Video Remote Interpreting (VRI) in medical settings. (NAD-Recommendations, NAD-Minimum Standards for VRI)

• DOJ, HHS and several other federal agencies released guidance in 2013, post-Hurricane Katrina, and it has a list of “promising practices for ensuring compliance” during emergency and disaster management (2013 Joint Agencies Guidance)

• The Northwest ADA Center has several helpful guidance documents related to effective communication with persons who have communication disabilities, including one for ensuring effective communication in healthcare and new guidance specifically related to COVID-19 about accessibility at drive-thru medical sites. (NWADA – Effective Communication: health care, NWADA – Drive-through Medical Sites, and for a full list of NWADA’s guidance documents, see here)

• The Department of Justice has general guidance on language access plans, safe harbor provisions related to translation of vital information, and costs considerations (DOJ Guidance).

Federal law does not mandate that hospitals provide specific aids, actions or services. Ensuring effective communication may look different in different places, at different times. Each individual entity will need to evaluate what types of auxiliary aids and services are appropriate for their community and employed without undue burden. The above resources are tools to inform those plans during COVID-19.

References

Federal

• OCR Bulletins:
  • Civil rights laws are in effect, not set aside during ER  (March 16, 2020)
  • Providing treatment to persons with disabilities during ER (March 28, 2020)
  • Ensuring the rights of persons with LEP in health care during COVID (May 12, 2020)
• HHS One-pager: Affordable Care Act, Section 1557: ensuring meaningful access for individuals with LEP
• DOJ Formal Guidance – Language Access Plan, Safe harbors, Cost Considerations
• ADA Requirements: Effective Communications

Washington

• Washington State – Language Access Plan in response to COVID-19
• Washington State – Joint Bulletin to Health Care Providers on Non-Discrimination (April 20, 2020)
• RCW 49.60

WSHA’s 2020 New Law Implementation Guide

Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.