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OCR Bulletin Reminds Health Care Entities of Rights of Individuals With Limited English Proficiency During COVID-19 Pandemic

May 18, 2020

The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) enforces Title VI of the Civil Rights Act of 1964 (“Title VI”) and Section 1557 of the Affordable Care Act (“Section 1557”), which, among other things, protect individuals with limited English proficiency (“LEP”) from discrimination by health care entities that receive HHS-provided federal financial assistance.  On May 15, 2020, OCR issued a bulletin reminding health care entities that their responsibility to provide meaningful access to individuals with LEP is not waived during the COVID-19 public health emergency.  In this bulletin, OCR provides health care entities with the following methods to ensure meaningful access to individuals with LEP during this public health emergency.                    

The following recommendations are made to ensure that individuals with LEP understand the services that are available to them relating to COVID-19. Health care providers should:

  • “Contract with entities qualified to provide language access services through multiple types of media (telephonic interpretation, video remote interpreting, etc.);
     
  • Disseminate COVID-19 information and messaging about testing and treatment in plain language and in the non-English languages prevalent in the affected area through all forms of media, including online, television, or social media, and through targeted outreach to community and faith-based organizations that can reach individuals with LEP;
     
  • Post COVID-19 documents in multiple languages in multiple locations, including at providers’ initial point of contact;
     
  • Offer services in multiple languages and provide notices of such language access services online, in advertisements, and at points of service;
     
  • Designate a person on every shift to be responsible for ensuring and coordinating the delivery of language access services for patients with LEP at every stage of contact, from intake and admission to treatment and discharge;
     
  • Create and disseminate widely to staff an up to date list of in-person and remote translation and interpreter services and of bilingual staff who are qualified to respond quickly to the needs of patients with LEP;
     
  • Use ‘I Speak’ resources or ask open-ended questions to determine an individual’s written and spoken language preference at the first point of contact;
     
  • Upon identifying a patient with LEP, make sure critical information is communicated in the patient’s preferred language by using a qualified interpreter or translated materials, remotely if necessary;
     
  • Clearly mark patient charts (or EHR records) with their LEP status and preferred written and spoken language; and
     
  • Where feasible, respect patients’ wishes to use their own interpreter, such as an adult friend or family member, if they are qualified and if appropriate under the circumstances.”

OCR recognizes that the COVID-19 public health emergency has created unique circumstances whereby health care providers may find, in their professional judgment, that allowing in-person interpreters for individuals with LEP would pose a health risk (i.e., increase the risk of spreading COVID-19).  Thus, OCR urges health care providers, and other health care entities, to use remote audio or video interpretation to ensure that persons of all national origins are served during this public health emergency.

If you have any questions regarding the provision of services to individuals with LEP, please do not hesitate to contact any member of the Health Law Practice Group at Shipman & Goodwin LLP.

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