On December 5, 2024, the Office for Civil Rights in the Department of Health and Human Services issued a letter clarifying language access requirements as they apply to healthcare providers serving individuals with limited English proficiency (LEP).
The “Dear Colleague” letter, signed by OCR Director Melanie Fontes Rainer, was originally sent to healthcare providers and other recipients. According to the letter, the OCR “supports wide dissemination of this letter,” and encourages providers to read the letter and the rule to ensure compliance.
More specifically, the letter clarified language access requirements under a final rule of Section 1557 of the Affordable Care Act (ACA) that went into effect in July 2024.
Hospitals, state health departments, and nonprofits that receive Federal funding are the “covered entities” responsible for fulfilling these requirements.
Under this rule, LEP individuals should be provided translations of important documents and interpreters, both free of charge, in compliance with Section 1557. Moreover, the language access services provided must be accurate and timely, while also protecting the privacy and independent decision-making ability of the individual with LEP.
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Some of the requirements noted in the letter relate to notices of nondiscrimination and the availability of language assistance services; for the latter, the notice must be posted in English and “at least” the 15 most commonly spoken languages by LEP individuals “in the relevant state or states in which a covered entity operates.” The letter directs readers to an April 2021 publication listing common languages by location.
The letter estimates that approximately 68m people in the US speak a language other than English at home, with 8.2% of those, or about 5.6m people, self-reporting that they speak English “less than very well.”
The 2016 version of this rule required covered entities to display “taglines,” short statements in languages other than English to inform LEP individuals of the availability of language assistance services. Taglines are no longer required.
Caveats and Urgent Circumstances
Perhaps most notable are the caveats outlined in the letter. Regarding interpreters, covered entities must offer a qualified provider, defined as someone who has demonstrated proficiency in speaking and understanding both spoken English and at least one other spoken language.
The letter warns against placing bilingual individuals in the position of interpreting: “Covered entities should be mindful about their choice of interpreters since a person who speaks both English and the target language may not necessarily be comfortable serving as an interpreter and may not be qualified as an interpreter under Section 1557,” nor does self-identification as proficient qualify someone bilingual as a capable interpreter.
The letter goes on to enumerate a number of possible exceptions to the rule, explaining that covered entities may rely on “unqualified” adults to facilitate communication as a “temporary measure while finding a qualified interpreter” in emergency situations where no qualified interpreter is immediately available. In such cases, a qualified interpreter should later confirm or supplement the communications exchanged.
“Covered entities should be mindful about their choice of interpreters since a person who speaks both English and the target language may not necessarily be comfortable serving as an interpreter and may not be qualified as an interpreter under Section 1557,”
To waive their rights to a professional interpreter, an LEP individual must make such a request in private, through a qualified interpreter, without an accompanying adult present.
As for machine translation, described as “automated translation that is text based and provides instant translations between various languages,” for “critical” documents, a qualified human translator must review the translation; if a translator does not review the text, LEP individuals should be warned that the translated document may contain errors.
In urgent circumstances, in which it is not feasible for a translator to proofread the text until after an emergency, the MT must be checked “by a qualified human translator as soon as practicable.”
