Re: Revised Policy Guidance on Discrimination Against Persons with Limited English Proficiency (68 Fed. Reg. 47311), August 8, 2003
Liberty Place, Suite 700
325 Seventh Street, NW
Washington, DC 20004-2802
(202) 638-1100 Phone
Monday, December 8th 2003
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 hospital, health system 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, with often-limited resources, have been adapting to the rapid growth of diversity in their own communities. At the same time, the AHA has been engaged in a variety of activities 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. The increase in the number of different languages encountered and the continued pressure on hospital resources – both workforce and revenue shortages – increase the challenge of appropriately responding to the problem of racial and ethnic disparities in health care. Nonetheless, our commitment is unflagging and during 2003, the AHA significantly expanded efforts to showcase leaders and innovators among our members who have tackled various causes of disparities, one of which is communication barriers.
We also appreciate the opportunity to comment on the revisions to the Office for Civil Rights’ (OCR’s) policy guidance that were made in response to comments solicited in the spring of 2002. Overall, we believe that the clarifications made to OCR’s policy guidance provide critical flexibility in assessing the response of individual providers to their Title VI obligation to make their services accessible to Limited English Proficiency (LEP) patients. Our comments below primarily support specific revisions and outline ways in which we believe OCR, and the Department of Health and Human Services (HHS) overall, can work with the AHA and others to enhance the ability of hospitals and other health care providers to address the needs of LEP patients.
As noted in our April 2002 comments, the AHA supports the core approach in OCR’s guidelines, which rely on four basic elements to achieve compliance with Title VI civil rights requirements with respect to LEP patients: 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.
The revised guidelines published in August 2003 now incorporate the Department of Justice’s (DOJ’s) four-pronged approach to assessing whether compliance with Title VI by a particular recipient of federal assistance is appropriate. The four factors are:
- The number or proportion of LEP persons eligible to be served or likely to be encountered by the provider
- The frequency with which LEP patients come in contact with the provider
- The nature and importance of the provider’s service
- The resources available to the provider and the cost
In doing so, the guidelines provide a much clearer picture of how they would apply to different types of circumstances and communities. They now provide parameters around specific requirements by addressing not only the most comprehensive approach to compliance, but also the circumstances under which alternative or less intensive approaches are appropriate and acceptable.
The AHA believes it is especially important to retain the clarifications published in August on the following points.
- Use of Family and Friends as Interpreters. The guidelines now accept the use of family and friends as interpreters when that is the choice of the patient, and under certain emergency circumstances. The guidelines further call for common sense on the part of providers in augmenting interpreters who are family members or friends with trained interpreters under certain circumstances, such as when important treatment decisions are being made, informed consents are being obtained, there is reason to believe that the family member or friend is not interpreting competently or may have a conflict of interest, etc. These clarifications recognize that family and friends who act in this capacity often are the same individuals who will help care for the patient in their home and that many health care encounters do not involve complex or highly sensitive communication. It further recognizes that there are circumstances when trained interpreters are essential to protect the interests of both LEP patients and providers. We know that this is one of the most controversial issues associated with the guidelines. AHA believes that OCR has achieved an appropriate balance – the standard remains rigorous but more practical.
- Availability, Training, and Certification of Interpreters. The guidelines now accept that health care providers need to utilize a variety of forms of interpreter services: trained professional health care interpreters, bilingual staff, local volunteers, and telephonic or other off-site interpreter services. They also recognize that professional interpreters certified in health care translation are not always available. The guidelines now focus on whether providers have taken reasonable steps to ensure the competency of interpretive services. Again, we believe this is a practical and common sense approach that acknowledges the rapid expansion in the number of languages spoken in America. It also acknowledges that 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. The use of interpreters who are certified in health care translation may be an appropriate goal, but a requirement that providers do so under all circumstances in today’s environment would be extremely difficult and impractical.
- Translation of Written Documents. The guidelines also now provide more useful distinctions between vital and non-vital documents, and emphasize written translation initiatives for vital documents.
The AHA appreciates the degree to which issues raised last year have been addressed in the revised guidelines. The discussion is much more helpful and instructive than the earlier version of the guidelines. The guidelines are demanding but flexible and practical. We offer one note of caution, however: Throughout the guidelines, discussions of flexibility still reflect the highest expectations of hospitals because of their size and presumed resources, as well as the critical nature of their services. While hospitals may have more resources than physician offices, they also have more demands on those resources. In enforcing the guidelines, we urge that OCR and its regional representatives avoid assumptions about the availability of hospital resources and look carefully at each provider’s individual circumstances.
Providing Assistance to Hospitals and Other Health Care Providers
In our comments last year, we urged that OCR and its sister agencies within HHS provide greater assistance to health care providers in identifying, assessing, and implementing different ways to serve LEP patients. We also offered several specific recommendations. Since the publication of the revised guidelines in August, we have had reports of both increased OCR regional office activity and a new emphasis on helpful educational efforts. We believe this approach will significantly aid efforts to reduce racial and ethnic disparities in health care services that result from poor communication with LEP patients. We still believe, however, that HHS should translate required Medicare patient notices into a broader range of languages.
As indicated above, the AHA has significantly expanded its efforts as well. With the advice and counsel of leaders among our membership, AHA has established a special section on racial and ethnic disparities on our Web site that includes a host of resource materials (see www.aha.org/key_issues/disparity ). We also conduct frequent teleconferences in which hospital leaders discuss case examples. AHA also is exploring a variety of ways to make it easier for our members to analyze the population in their communities, languages spoken, and disparities in illness and/or treatment in order to evaluate their services and programs.
In addition, we recently distributed to our members a Strategies for Leadership toolkit on Improving Communications with Patients and Families that addresses a variety of issues, including language barriers. One of the documents in the toolkit is a new statement on The Patient Care Partnership: Understanding Expectations, Rights, and Responsibilities, which replaces our historic A Patient’s Bill of Rights. We have made the new statement available in six languages: English, Spanish, Chinese, Russian, Arabic, and Vietnamese. Also included is a self-assessment tool for hospital chief executives on patient communication that incorporates language barrier issues. The entire toolkit can be found on our Web site (see www.aha.org/ptcommunication ).
We at AHA agree with your assessment at the end of the August 8 Federal Register notice that refers to implementation as a process that will evolve over time. 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 patients, the recruitment and training of health care workers, and the management and governance of hospitals. We commend OCR for the thoughtfulness demonstrated in the revised guidelines.
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