Re: Policy Guidance on Discrimination Against Persons with Limited English Proficiency (67 Fed. Reg. 4968), February 1, 2002
Liberty Place, Suite 700
325 Seventh Street, NW
Washington, DC 20004-2802
(202) 638-1100 Phone
Tuesday, April 2nd 2002
Ms. Deanna Jang
Office for Civil Rights
Department of Health and Human Services
Hubert Humphrey Building, Room 506F
200 Independence Avenue, SW
Washington, DC 20201
Dear Ms. Jang:
On behalf of our nearly 5,000 hospitals, health systems and other health care provider members, the American Hospital Association (AHA) appreciates the opportunity to share our views on an issue of great importance to the nation's hospitals: ensuring that the increasingly diverse cultures of our patients and communities are reflected in how we organize and deliver health care services.
America's hospitals have always been community-oriented. As a result, hospitals, within often-limited resources, have been adapting to the diversity found in their own communities. At the same time, the AHA has been engaged in a variety of activities designed to foster and support diversity in every aspect of health care delivery - from hospital board rooms and staffs, to educational programs - so that our patients see themselves in us and are better able to get the care that they need.
It is increasingly clear that a major change in the nation's immigration patterns is having a profound effect on the number of languages spoken by residents and encountered by community service providers. It is also clear that few government and social agencies are fully prepared to accommodate so many languages. The federal government, for example, is just beginning to move beyond accommodating Spanish-speaking residents by adding a limited range of Chinese language translations to its materials.
The AHA supports the core approach in the guidelines, which relies on four basic elements to achieve compliance with Title VI civil rights requirements: assessment of the language needs of the population being served; development of written policies and procedures on language access; the training of staff in those policies and procedures; and monitoring to ensure that the policies are being followed and are effective. This is a straightforward approach familiar to hospitals, in that it is very similar to the processes we use to improve quality. It also is one that, if properly enforced, would provide the flexibility necessary to ensure that the approaches being devised are tailored to each community.
We are concerned, however, that the guidance as published does not reinforce this simplicity. The guidance describes a variety of compliance activities that generally represent an optimal approach to compliance (referred to as safe harbors). While they are well-meaning, they often may be impractical. And while there are many places where the Office for Civil Rights (OCR) states that health care providers are not necessarily required to perform all of these activities, there is little guidance to back up those statements. Providers are therefore left with the impression that they are at risk if they do anything less than the optimal - an impression reinforced by the model plan included in the guidance. In addition, hospitals are singled out for less tolerance of anything but optimal compliance and for greater scrutiny than other providers.
The AHA recommends that the guidelines be revised to focus on the four basic elements, and to present a more balanced discussion about which activities are or are not required.
Availability of Interpreters/Use of Family and Friends as Interpreters
The issue of interpreters is perhaps one of the more difficult issues to contend with due to the rapid expansion of the number of languages spoken in America. Hiring multilingual staff is increasingly difficult. There is a growing shortage of health care workers in the United States, especially nurses and allied health technicians, which makes it more difficult to identify and hire a work force that not only is multilingual, but also represents the broad range of languages that could be encountered by a provider.
Requiring the use of interpreters that are trained and certified in health care translation may be an appropriate goal, but is extremely difficult and, at least today, impractical. Generally, interpreters are in very short supply and certification in health care translation is not available. Where certification is available, it limits the local pool of interpreters at a time when increasing demand is driving up their cost. The OCR notice clearly views telephone interpreter services - the most widely available and accessible form of interpretation - as sub-optimal except in the most limited circumstances. Ultimately, newer technologies are likely to improve the availability of more effective off-site interpreter services (especially simultaneous translation through headphones worn by the patient and clinician), but that time has not yet arrived.
The use of a patient's family and friends as interpreters is perhaps the most controversial issue involved in these guidelines. While the guidelines concede that the patient should decide whether he or she wants a family member or friend to interpret, the guidelines add that the provider should have an interpreter present anyway. While there are legitimate concerns about the use of very young minor children as interpreters and about confidentiality and privacy in some circumstances, it has been the experience of many of our hospital members that family and friends who act in this capacity are the same individuals who will help care for the patient in their home. Furthermore, many health care encounters, especially outpatient care, do not involve complex or highly sensitive communication. An example would be outpatient tests, where results are not provided until a subsequent visit to the patient's physician.
We believe that this aspect of the guidelines needs to be more flexible and better recognize the very real payment constraints under which health care providers operate. In the March 2002 report to Congress on the benefits and costs of improving access to services for limited English proficiency (LEP) people, the Office of Management and Budget (OMB) indicated that of the four major sectors of the economy studied, the provision of language services could be most costly for the health care sector. OMB also indicated that, while the costs of enhanced language assistance are difficult to quantify, they are significant. This is an area where we cannot afford to let "the best be the enemy of the good," as Voltaire so aptly put it. Until new translation technologies are more available and affordable, flexibility in the regulations is key to assuring that hospitals can continue to do the best they can to effectively communicate with and better serve their patients.
The AHA recommends that the guidelines not establish any preference for one form of interpretive service over another. The patient should decide whether he or she is more comfortable with a family member, a friend or a trained interpreter.
Providers should have full flexibility to use various interpreter services based on their particular circumstances and those of their patients. When patients prefer that a family member or friend translate for them, providers should not be required to also engage a professional interpreter.
Translation of Written Documents
The guidelines set forth a three-pronged safe harbor for determining whether documents must be translated in writing. Where an eligible LEP population group constitutes 10 percent of the overall population, or 3,000 people, whichever is less, of the provider's service area, apparently all documents must be translated. Where an eligible LEP population group constitutes 5 percent or 1,000 people, whichever is less, of the provider's service area, only "vital" documents must be translated in writing. Oral translation appears to be acceptable only where 100 or fewer individuals in an LEP population group are in the provider's service area.
There are several problems with this aspect of the guidelines. First, while a footnote says that this safe harbor is not intended to establish numerical thresholds for when documents must be translated, there are no other alternatives offered, leaving at best a lack of clarity and at worst a very different impression. Second, the guidelines do not define "vital documents," leaving that to be determined later. Third, the numeric thresholds included are too low. At a minimum, the thresholds should be changed to "the greater of" rather than "the lesser of."
OCR should be very cautious in any suggestion that providers must translate documents in writing beyond vital documents, depending on the ultimate definition of a vital document. We have had reports of OCR regional staff demanding that hospitals provide written translations of daily menu options for very small LEP population groups. We see no reason for such things to be translated in writing, rather than orally. Also, hospitals are a major resource of information about health care topics, particularly in the form of brochures and videotapes prepared by others (including federal and state regulatory and public health agencies). Most often, these materials are made available to hospitals in English only, with some also available in Spanish. They seldom are available in other languages. If hospitals are required to translate such materials into other languages in order to make them equally available to LEP populations, the result could be an inability to continue to distribute such materials to anyone.
The AHA recommends that the document translation provisions be clarified to focus on vital documents only, to increase the LEP population size threshold, and to exempt documents prepared by other parties where the hospital is simply part of a distribution mechanism.
As indicated earlier, we support staff training as an integral element of any compliance plan. However, in a hospital setting, there is a variety of staff who may have very limited contact with patients, and for whom it would be impractical and unnecessary to train in the policies and procedures regarding language access. Such staff would include janitorial staff, lab technicians, etc. In addition, many hospitals are experiencing a variety of staff shortages; unnecessary training has the potential to exacerbate such shortages by diverting staff time to training that is unlikely to be applied.
The AHA recommends that the staff training requirements be limited to clinicians and staff who have direct and significant contact with patients.
Interaction with State Law
As with many other areas of health care regulation, requirements related to the delivery of services to LEP individuals often are regulated at the state level as well. The guidelines will be more effective if they address and accommodate state requirements.
As long as a health care provider has implemented the four basic elements of an effective compliance plan, the AHA recommends that the federal guidelines establish a safe harbor for providers that comply with state requirements.
Availability of OCR Assistance
Several references are included throughout the notice regarding the availability of technical assistance from OCR regional staff, especially in identifying specific approaches to particular issues that have been used successfully in similar communities. In working with individual hospitals, hospital systems, and state hospital associations in many areas of the country, their experience suggests that the availability of assistance varies significantly by region. In the past we have suggested that OCR identify compliance resources on its Web site, but a recent review of the site yielded little, with the exception of "I speak . . ." flashcards in the top 20 languages. On the Department of Health and Human Services (HHS) Web site, required Medicare beneficiary notices are generally available only in English and Spanish, and occasionally in Chinese. It is extremely inefficient for each provider to have to translate government notices and forms, especially those that may not be modified by the provider.
AHA again recommends that OCR develop a specific segment of its Web site to provide direct access to technical assistance. At a minimum, we believe the Web site should include:
- "I speak . . ." flashcards in the top 20 languages spoken by LEP individuals
- Picture flashcards that can be used by clinicians to pose basic questions about symptoms (such as identifying pain) that can be used with people who are illiterate in their own language as well as English, or that can be used in the interim until interpretive services are available
- Downloadable Adobe Acrobat (.pdf) files with all federally required notices and forms translated into the top 20 languages spoken by LEP individuals, including a notice regarding the availability of language assistance
- A clearinghouse of examples of innovative or effective methods for addressing different aspects of compliance, such as community language or interpreter banks, volunteer training materials, compliance plans for different provider types and sizes, etc.
- An identification of sources for translation assistance
- Alternative methods available for determining the competency of interpreters
We believe that more progress will be made in providing language assistance to LEP populations if OCR focuses on simple and straightforward guidance and the provision of technical assistance. The AHA is committed to helping our members understand how rapidly the population in this country is changing, and how that change affects the provision of care to our patients, the recruitment and training of health care workers, and the management and governance of our institutions. We also believe that the natural responsiveness of providers to their patients is already in evidence and is increasing daily - raising the question of whether such a highly regulatory approach is needed.
Again, the AHA appreciates this opportunity to comment and is committed to continued improvement in how health care providers respond to the cultural diversity of our communities. If you have any questions or we can be of any further assistance, please contact me; Carmela Coyle, senior vice president, policy; or Ellen Pryga, director, policy development, at (202) 626-2267 or firstname.lastname@example.org.
Executive Vice President