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Language Access in the New Normal Conference Follow-Up: Myth Busting the New Health Care Civil Rights Rules
By Bruce Adelson, Esq.
The 2020 IEO Language Access in the New Normal conference brought together hundreds of people from across the language services industry to discuss myriad issues of concern and importance. The virtual audience generated pages and pages of excellent dialogue, comments, questions, and professional recommendations.
With the benefit of time to reflect about the conference and presentations, I wanted to provide some additional myth-busting information about the new health care civil rights rules, Section 1557 of the Affordable Care Act (ACA).
For example, although the new rules mostly eliminate the requirements for public notices about language services, federal law still requires such notices, many comments to the contrary notwithstanding. For your information, I provide legal citations and case names to facilitate and enable more accurate understanding of the state of federal health care civil rights law.
Uniquely among federal laws, the Affordable Care Act incorporates multiple other federal laws into its statutory scheme. Section 1557 prohibits several types of discrimination: race, color, language, national origin, disability, sex, and age. The Section’s mandates originate from six different federal statutes, each with its own regulations, guidance, advisories, directives, jurisprudence, and history:
- Americans with Disabilities Act (ADA);
- Rehabilitation Act of 1973;
- Title VI of the Civil Rights Act of 1964;
- Title VII of the Civil Rights Act of 1964;
- Title IX of the Educational Amendments of 1972; and
- Age Discrimination Act of 1975
Title VI of the Civil Rights Act of 1964 (Title VI) (45 Code of Federal Regulations (CFR) 80 and 42 U.S. Code § 2000 d) requires federally subsidized health care providers, state, and local governments to provide effective language assistance to people who are not English proficient. Title VI requires such federally subsidized organizations to translate Notices of Non-Discrimination into applicable non-English languages.
For example, in two recent HHS Title VI enforcement agreements, HHS required the investigated provider to give “… notice of the right to free Language Assistance to LEP persons in a language they can understand.” See: U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES and MEE MEMORIAL HOSPITAL Resolution Agreement Transaction Numbers: 12-143846, 13-151016 & 13-153378 (2016), SETTLEMENT AGREEMENT BETWEEN U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE FOR CIVIL RIGHTS, SOUTHEAST REGION AND ALABAMA DEPARTMENT OF HUMAN RESOURCES (2017)
Title VI further requires the translation of “vital documents” into applicable non-English languages. Vital documents are part of the nearly 20-year old Four-Factor Analysis referenced in the new Section 1557 regulations. As defined by the above Mee Memorial Hospital enforcement agreement, “vital documents” includes “notices pertaining to eligibility for benefits,” such as the Notice of Non-Discrimination and Language Assistance:
“Vital Documents shall include, but are not limited to: applications; consent forms; complaint forms; letters or notices pertaining to eligibility for benefits; letters or notices pertaining to the reduction, denial or termination of services or benefits or that require a response from the LEP person; written tests that test competency for a particular license, job, or skill for which knowing English is not required; documents that must be provided by law; and notices regarding the availability of free language assistance services for LEP individuals.” Emphasis added
Additionally, the U.S. Department of Health and Human Services provides the following in its 2003 Title VI and Limited English Proficiency guidance, which is also incorporated into the new Section 1557 rules:
“Once a [federal funding recipient] recipient has decided, based on the four factors, [sic] that it will provide language services, it may be important for the recipient to let LEP persons know that those services are available and that they are free of charge.
Recipients should provide this notice in a language LEP persons will understand. Examples of notification that recipients may want to consider include:
- Posting signs in intake areas and other entry points. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in intake areas or initial points of contact so that LEP persons can learn how to access those language services. This is particularly true in areas with high volumes of LEP persons seeking access to certain health, safety, or public benefits and services, or activities run by HHS recipients. For instance, signs in intake offices could state that free language assistance is available. The signs should be translated into the most common languages encountered. They should explain how to get the language help.
- Stating in outreach documents that language services are available from the recipient. Announcements could be in, for instance, brochures, booklets, and in outreach and recruitment information. These statements should be translated into the most common languages and could be ‘‘tagged’’ onto the front of common documents.
- Working with community-based organizations and other stakeholders to inform LEP individuals of the recipients’ services, including the availability of language assistance services.
- Using a telephone voice mail menu. The menu could be in the most common languages encountered, and provide information about available language assistance services and how to get them.
- Including notices in local newspapers in languages other than English.
- Providing notices on non-English language radio and television stations about the available language assistance services and how to get them.
- Presentations and/or notices at schools and religious organizations.”
Federal Register /Vol. 68, No. 153/Friday, August 8, 2003
The new §1557 rules also removed the prior recommendation that federally subsidized health care providers have Language Access or Limited English Proficiency Plans to inform and enable their provision of federally required language services. However, contrary to many commentators, this Plan requirement remains in federal law, through court decisions, federal guidance from HHS, the Department of Justice (DOJ), and virtually every federal agency, and federal enforcement actions, such as DOJ’s 2019 Title VI action against the Louisiana Supreme Court in which the Court is required to adopt and implement a Language Access Plan covering all Louisiana courts.
However, it is the 2016 ruling of a federal court that is most appropriate and binding for informing everyone that such Plans are legally required. In this case, several limited English proficient parents sued the School District of Philadelphia alleging various forms of discrimination, including national origin and language.
In response, the federal court held:
“For over 45 years, ED [U.S. Department of Education] has put school districts on notice that Title VI requires providing LEP parents meaningful access to information about school programs and activities. In its 1970 Memorandum interpreting Title VI, ED explained that “[s]chool districts have the responsibility to adequately notify national origin-minority group parents of school activities which are called to the attention of other parents. Such notice in order to be adequate may have to be provided in a language other than English.” 35 Fed. Reg. 11,595.
Given the importance of the District’s educational programs, the large number of LEP parents in the District, and the frequency with which they need access to such programs, application of the four-factor analysis clearly requires “an effective LEP plan [that] includes the translation of vital written materials into the language of each frequently-encountered LEP group eligible to be served and/or likely to be affected by the recipients’ program.” Emphasis added
T.R. v. School District of Philadelphia (U.S. District Court for the Eastern District of Pennsylvania, 2016)
In examining and evaluating the new §1557 rules, it is vitally important to remember that the Affordable Care Act is built upon six other federal laws. These laws, like Title VI, remain unchanged. Their multiple requirements remain legally binding on federally subsidized health care and other organizations. Before taking commentators’ opinions at face value, remember that the law is complex, with many twists and turns. The new rules are part of this complexity. They are much more than meet the superficial eye and indeed retain substantial legal requirements against health care discrimination.
© Bruce L. Adelson 2020. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
I was one of those lucky professionals who attended Interpreter Education Online’s inaugural online conference. And I can tell you that the value delivered was above the price tag – which is what I have learned to expect from IEO’s Team. Plus, I had the pleasure of spending an afternoon with some dear colleagues who I had not heard from in a long time.
The focus of the event was our current reality, meaning the adaptations we have had to make in order to continue meeting our clients’ expectations, how to manage our work-life balance when both take place in the same environment, how to handle the legal aspects of this new relationship with clients (especially important for interpreters used to in-person assignments), dealing with all the extra learning in order to remain relevant… Just the right mix of knowledge to give us a heads-up and encouragement.
The balance of subjects and tone also deserves to be highlighted. Presentations ranged from Bruce Adelson’s very corporate and technical to Eliana Lobo’s light-hearted and nugget-full to Caitilin Walsh’s humorous study on our current situation. There was—definitely—something for everyone.
We are all aware, at some level, that the disruption caused by COVID-19 does not care for the type of business you are in, it knows no geographic borders: we are all affected by it. Konstantin Dranch, Chris Carter and Dr. Bill Rivers gave us a glimpse of the issues the language industry and our professions – translation and interpreting – have to deal with.
Eliana Lobo’s very informative presentation focused on tools and tips for remote interpreting – an issue dear to my heart. In the time allotted, she was able to help you set up your remote working environment, prepare a list for self-assessment, find out where to go to improve your services and add value to your performance.
The plight of immigrants, especially those who speak indigenous languages, LGBTQ community members, deaf individuals and other underserved communities were also addressed. Howard Rosenblum Esq., Florencia Aguilar, Victor Sosa and Billy Pierre did a great job bringing those subjects to our attention. We now have an opportunity to affect change in a sphere broader than our comfort zones.
Interpreter safety and language proficiency standards were perfect segues for the previous session. Knowing what to deliver is steps away from doing it accurately and safely. The panel led by Bruce Adelson and composed by Carla Fogaren and Ernest Niño-Murcia discussed language access and the legal side of our jobs, while Natalya Mytareva focused on language proficiency standards.
Rafa Lombardino and Florencia Aguilar teamed up to talk about expanding our services and the need for learning and implementing new tools and skills in our professional routine. Elena O’Halloran expanded on the same subject (kind of) by discussing how and when machine translation becomes an ally.
Caitilin Walsh’s presentation delivered exactly what we all needed at end a full day of learning: useful humor, self-reflection, and acceptance that indulging oneself is sometimes necessary.
All the presentations added value to our knowledge base, and the speakers’ ability to communicate clearly made it easier for attendees to stay put, waiting for the next gem to be delivered.
The only comment I have is that next time we need to make lunch break longer and earlier. I can hardly wait for the next IEO conference.
©Giovanna Lester 2020
Giovanna (Gio) Lester is a conference interpreter, speaker, translator, writer with 40 years of experience. Gio is a member of a number of professional organizations, in which she holds various volunteer positions: General Secretary, Mentor and President Elect (2020-2022) at Abrates (Brazilian Association of Translators and Interpreters), Spokesperson for the American Translators Association (ATA), Co-founder and former President (two terms) of the ATA Florida Chapter (ATIF), at NAJIT, she served as the Social Media Committee Co-chair and Editor/Curator of its blog, The NAJIT Observer (2016-2020). Gio was an Adjunct Professor at Florida International University (1986-87 and 2001-2003), and she is the immediate past Chair of the Miami-Dade College Translation and Interpretation Advisory Committee. Sharing her knowledge and professional experiences is a passion that keeps her growing.
By Liz Essary
When I started the first year of my graduate work entirely online, I wasn’t sure what to expect as a student. I only knew that getting comfortable functioning in an online environment would work to my advantage as an interpreter who would surely some day be interpreting using online platforms. It turns out I was right, and it was thanks to my instructors who were skilled in delivering content and supporting students in an online classroom that it was a success for me.
After grad school, I went on to teach Spanish classes online for my alma matter, and I’m getting ready to teach some skills-based courses for interpreters. I learned a few things along the way as a student and an instructor online that may be helpful if you’re getting ready to go down the same path.
- Check your assumptions about the students’ comfort level. As an online student, I lost count of how many times I heard something like, “You guys are young, you’re comfortable navigating online settings.” First, not all of us are that young! I was 40 in my first year of graduate school. Second, I’ve discovered in my role as online instructor that youth doesn’t necessarily equal competence in an online classroom. Some more mature students (like me) may not be at ease functioning in an online classroom at first, but they’re motivated to figure it out, don’t hesitate to ask questions, and end up doing just fine. Some younger students may be comfortable communicating online, but will panic when they are faced with figuring out how to use a new platform to complete an assignment. As a rule, it’s a good idea to keep an eye on all students, no matter what your initial impression is of their comfort level functioning online.
- Set clear expectations. I’ve had the experience on both sides that students think that online learning = easy. Quite the contrary, online learning may require more effort and time than in an onsite class, and many students will be caught off guard by this. As an instructor who had previously taught only onsite, I was surprised by how much more work is seemingly required to teach in an online classroom. Mitigate the initial shock to the students by sending a short email before the class begins, welcoming the students and including bullet points on the following: How many hours students should expect to spend on assignments every week, which platforms will be used, and how many activities require participation in groups, or any kind of meeting in real-time (if any).
- Organization and consistency are important. Because there is so much content in any course, and you’re not there onsite to answer questions as they arise, it’s best to establish upfront an organized, predictable approach so the students don’t get lost. In my best online course as a student, the instructor posted weekly announcements with just three bullet points that included assignments, learning objectives, and any extra reminders for the coming week. I’ve adopted this same approach as an instructor, and I keep a template with bullet points that I change week to week depending what we’re working on. I also like to queue up weekly reminders that post at the same time every week. The feedback from students on this kind of organization has been overwhelmingly positive, and it also helps in keeping myself organized.
- Make sure you’re up-to-date. If you’re teaching a class for a second time, or inheriting a class from someone else, don’t assume that all of the information in your class site is up-to-date. In just two years of teaching, I’ve gone through multiple updates in my classes in terms of how to sign up for and use any given platform. For example, a video conferencing platform that you used last semester and required a somewhat complicated process to create an account may now require just an email and password to create an account. Before you begin your course, go through all your links and make sure they’re all up-to-date and in line with the instructions you’re giving. It’s tough for everyone when you get started off on the wrong foot because of outdated information. This is likely true of an onsite course as well, but becomes even more key when the entire course relies on online platforms to function.
- Keep an eye on students’ progress. When the semester begins, I create a spreadsheet with my students’ names, profiles (the fill out a worksheet for me), and then columns for each week where I keep track of who’s not meeting expectations. I then message those students individually, and keep track of our correspondence in the same spreadsheet. It may seem silly to create yet another tool when we already have online rosters, grade books, and email keeping an electronic record of everything. But I’ve found that having an all-in-one record of students’ progress makes my life easier: It’s easier to see red flags if someone is falling behind, and it’s a lot easier to fill out the periodic progress reports that are required by my university. This way, you’re not realizing three weeks into the semester that you have a student who hasn’t done anything yet, and it’s too late to help them. This is especially helpful with larger groups, or classes that have a lot of work upfront (like registering on multiple platforms, signing up for group work), to make sure nobody is falling behind. And I find after the first few weeks, if you’ve done that work upfront of making sure everyone is moving forward, there’s a lot less effort in that regard for the rest of the semester.
- Make it personal. In my experience as an online student, I didn’t feel too much of a disconnect from my instructors and classmates. In fact, I had a great experience as a student in an online classroom. So I’ve been surprised at how many of my students have told me they miss the onsite classroom interaction to the point that they feel it interferes with their understanding of the content and their progress. This can be tricky if your class doesn’t hold synchronous meetings, and students can end up feeling isolated. When posting weekly updates, post a quick video to say hello and give a brief summary of the points in the update. Consider holding weekly drop-in office hours through a video conferencing platform so the students can see you in real time. One colleague has students schedule a mandatory one-on-one meeting on a web conferencing platform with her at the beginning of the semester. Whenever you can, try and create a personal connection with the students, and help them connect with each other.
If your school offers free courses on delivering online courses (mine does) you’ll want to carve out some time to take advantage of that. Not only will you learn about best practices in an online classroom, but you’ll also meet other people doing similar work, with varied levels of experience and perspectives. In the end, the result will be a better experience for you and your students.
What about you? Which of these tips resonate with you? What would you add?
This article first appeared on ataeducationdivision.org
It was not possible to answer all the questions during the webinar, so we tried to cover all your additional questions here:
A: Biological products include a wide range of products such as vaccines, blood and blood components, allergenics, somatic cells, gene therapy, tissues, and recombinant therapeutic proteins. Biologics can be composed of sugars, proteins, or nucleic acids or complex combinations of these substances, or may be living entities such as cells and tissues.
Q: Remote interpretation is great, but what about when reception is not good, or when patient is a child, or the background noise cannot be controlled?
A: The remote interpreter can make a big difference when these technical and noise difficulties pop up. The provider and patient are already stressed, so a calm and reassuring interpreter can guide all parties to keep going, speak slowly and clearly, check for understanding.
The interpreter can encourage the provider to call again if the signal cuts out, if that problem is affecting the language system that day.
The interpreter should identify specific noise problems and make suggestions on how to shield the equipment, place it closer to the patient, or move the patient gurney down the hallway. A few feet can make a big difference to microphone pickup.
In tough noise situations use a corded set of two earbuds and separate the cord so that the provider and patient each has one earbud. Cords are 4 feet long, so by separating the cord, there can be about 7 feet of distance between patient and provider. Wipe down earbuds between use.
If using a phone interpreter rather than video, a great solution is to use the provider phone and the patient personal phone and have the phone interpreter service conference in the patient phone. Then both the provider and patient can hold their phones up their ears and hear more clearly.
Q: Is there a preferred platform for interpreters to use for remote interpreting due to connectivity and/or conferencing capabilities? Ex. Zoom vs WebEx vs 3rd Party?
A: Choice of platform is usually strictly controlled by the IT department in the organization, due to contracting rules, taking into consideration quality of connection and encryption for HIPAA protection. If providers are choosing their own platform, quality of signal should govern the choice, with this caveat.
HIPAA protection is not guaranteed for most ad hoc conferencing platforms, so use these guidelines to guard patient privacy: the interpreter should state to the provider at the beginning that the patient name and the name of the location of the encounter are not be mentioned during the conversation.
Q: My follow-up question would be, how should court and conference interpreters adapt our practice? In terms of wearing masks and social distancing, how can we best protect ourselves in a crowded court room, or on the stand with a witness/defendant?
A: Guidance for wearing masks is maturing as we speak. We are now advised to wear homemade simple cloth masks everywhere, to protect those around us from our droplets rather than to protect ourselves.
An interpreter in court is in a tough situation unless she is in a booth, because normally the interpreter speaks quietly into the ear of the client as well as out loud to the court. Wearing a mask necessitates speaking in a louder and slower voice to the court. Using an interpreter microphone with earphones for the client would avoid physical proximity. The court or deposing lawyer should otherwise be providing guidance for all members of the encounter.
Use the same strict guidelines on not putting anything down on surfaces as healthcare interpreters. Wear a shoulder bag that hugs the body for your papers and necessities. Strict and frequent hand hygiene!
Q: Is the use of gloves and surgical masks (when you bring your own) recommended in regular appts even if the doctor and patient are not wearing them?
A: First, yes to wearing a mask. Healthcare workers, which includes interpreters, are exposed to much more virus than the general public, which is a higher risk for getting infected. When appearing at an encounter request the same higher level of mask protection as the direct care staff who are in the treatment space with the patient. If the care team is wearing gloves, wear gloves. Use alcohol gel before putting on gloves and after taking them off. Do not put anything down in the treatment area or out in patient reception areas.
Q: How can we keep social distancing? In Workers Comps appts (and in mostly any appt) we interpreters sit next to patients and help them fill out a very lengthy questionnaire in a usually crowed waiting room…
A: It is very important both to not sit next to the patient AND to protect privacy for the patient. Either go outside or to the hallway to get some space while being able to speak loudly enough to converse without other people hearing. Or ask to be taken back to a room for privacy, and sit well apart. Or sit apart and use your cell phones to talk to each other quietly. Of course, ask if there is a questionnaire in the patient’s language, if the patient is literate and well enough to fill it out herself.
Q: Does COVID-19 have the potential to cross the placenta?
A: We still do not know if a pregnant woman with COVID-19 can pass the virus that causes COVID-19 to her fetus or baby during pregnancy or delivery. No infants born to mothers with COVID-19 have tested positive for the COVID-19 virus.
Q: Is it safe to receive boxes from Amazon and mail if we don’t touch nose/eyes/mouth?
A: Coronaviruses are generally thought to be spread most often by respiratory droplets. Currently there is no evidence to support transmission of COVID-19 associated with imported goods and there have not been any cases of COVID-19 in the United States associated with imported goods.
Q: Once you develop antibodies following infection, can you still become infected again?
A: At this time it’s too soon to know as we are still learning about the virus.
Q: What’s the difference between testing and screening for COVID-19?
A: The screening process begins when you contact your provider to discuss your symptoms and it will begin with a series of questions. The nurse or staff member decides whether your symptoms may be due to COVID-19 or another illness requiring treatment. You might get advice on self-care since symptoms often can be treated at home. The nurse/staff member may arrange a telephone visit between you and a health care provider or tell you to call your provider directly. The provider can talk with you about possible exposure, your symptoms, and discusses treatment. The provider may give you self-care advice to use at home. Or, he or she may tell you to go to your primary care clinic or emergency to be tested. It’s important to call first so we can protect you, other patients, and medical staff from unnecessary exposure to COVID-19.
Sources: Linda Golley, CDC.gov, who.int, fda.gov, chemistryviews.org
Coronavirus or COVID-19 is on everyone’s mind nowadays. For some it still is only the news you read and watch, however, it is a painful reality. With our remote team-member’s uncle dying last week of coronavirus, the pandemic hits close to home. Our thoughts and prayers are with his family and everyone directly affected by COVID-19.
Scientists recommend washing hands and staying home unless absolutely necessary to prevent the spread and stop the virus. In China, when students and teachers recently returned to class, they did so remotely.
Interpreter Education Online stays committed to our students, instructors and associates, working diligently and extra hours to assist your education and career needs. The demand for remote interpreting is growing exponentially amid the uncertainty of the situation.
To register for the webinars, simply send a request to Services@InterpreterEducationOnline.com
Let’s get everyone on VRI! Or, as one of our course administrators and the biggest introvert used to say, let’s unite separately in our own homes.
In all seriousness, stay healthy and safe. We are here for you.
These offers expire on June 1, 2020.