Short Paper #5: The ACA and Language Access

Health care reform offered many opportunitiesto improve language access by including specific provisions to increase funding, resources, and services. NHeLP convenes a national coalition of stakeholders working on language access issues and this coalition developed a list of principles for health reform that included the overarching principles:
 
  • All limited English proficient patients(LEP)should have access to language services (including oral interpretation and written translations) in all health care and public health settings.
  • All health care and public health providers and their staff should have access to competent interpreters and translated materials to ensure effective communication with individuals and families they serve during health services and administrative interactions.
For the full set of principles, see ?Principles for Health reform and Language Access?, available at https://healthlaw.org.
While we did gain some improvements in language access in the enactment of the Patient Protection and Affordable Care Act (ACA), many specific issues, particularly around funding, were ultimately not included in the final legislation. This article discusses some of the major provisions addressing language access that were included in the ACA.
General Recommendations
There are a number of provisions in ACA that offer opportunities to specify that language services must be provided or require the provision of certain information in a culturally and linguistically appropriate manner. So what does this mean in practice? A lot is left to the Administration to determine as part of ACA implementation. But that offers many opportunities to influence implementation and improve language services.
So first are some basic recommendations with regards to language access. Language services ? including oral interpreting and written translation1 ? should be required in all new demonstration programs, payment systems, and models enacted as part of the ACA. This should include plans participating in the new health insurance Exchanges.

With regard to oral communication, LEP individuals should be able to access bilingual staff or interpreters to assist with oral communication at all points of contact with the health care system ? from registration/intake and clinical encounters to financial counseling and customer service. When an LEP individual needs oral language services to communicate with health care providers or other participants in the health care system in a way that provides meaningful access, interpreters or bilingual staffshould be provided.
With regard to written materials, information should be translated into multiple languages and ?taglines? should be included on notices to alert LEP individuals of the importance of a particular document. When information is unavailable in an individual?s language, an LEP individual should be able to obtain information orally. 
The needs of LEP individuals must be considered as regulations, policies, procedures, and websites are being developed and implemented. This should apply whether the information is provided by federal or state governments, or plans participating in the Exchange.
The question arises as to how many languages materials should be translated into. The Department of Health and Human Services? Office for Civil Rights LEP Guidance (available at www.lep.gov) outlines guidelines for translating materialsfor entities that receive federal funds. These state that ?vital? documents should be translated for each LEP language group that constitutes five percent or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. Translation of other documents, if needed, can be provided orally via a process called ?sight translation.? In addition, the Guidance states that if there are fewer than 50 persons in a language group that reaches the five percent trigger above, the recipient does not need to translate vital written materials but can 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.
These guidelines apply to the translation of written documents only. They do not affect the requirement to provide meaningful access to LEP individuals through competent oral interpreters where oral language services are needed. 
Notably, the Social Security Administration (SSA) regularly translates materials into 15 languages. We believe HHS should use this as a guide and translate its documentsthat are used by beneficiariesinto at least 15 languages. Thisis particularly effective when documents are standardized at the federal level because of the cost efficiencies of HHS translating materials rather than individual health care providers or various plans/insurers translating the documents.In addition to translating certain documents into multiple languages, we recommend that all entities subject to the ACA ? HHS itself as well as the health insurers/plans that will be providing services through the new Exchanges ? ensure that vital documentsinclude a ?tagline? in at least 15 languages(at the top of the notice or as a prominent insert in the same mailing)that informs recipients that the notice is important and how to obtain information about the document in the individual?s language. For example, private health plans that serve California ? and thus approximately 12% of the nation?s population ? are already required to provide such notice. As an example, California?s Department of Managed Healthcare offers a sample language access notice with taglines in 12 languages.3
 
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