In a bulletin issued May 15, 2020, the Office for Civil Rights (OCR) stipulated that even during the midst of the Coronavirus crisis, healthcare providers must take reasonable steps to provide meaningful access to individuals with limited English proficiency (LEP). These steps may include written translations of documents, or oral language assistance from a qualified interpreter, either in-person or through remote communication technology.
The OCR Director issued this statement, “Because we are a diverse country, removing language barriers in healthcare delivery is crucial to addressing this public health emergency. We are committed to working with the medical community to make sure people of every national origin have meaningful access to healthcare without discrimination and consistent with the law,”
To ensure meaningful access for persons with LEP under a variety of circumstances, providers might consider the list of suggestions that may be found along with the bulletin at: https://www.hhs.gov/sites/default/files/lep-bulletin-5-15-2020-english.pdf
When circumstances are encountered that could pose a risk for spreading COVID-19, providers are encouraged to access the flexible provisions of the law, such as remote interpretation through audio or video technologies, to ensure persons with LEP are served.
Additionally, the HHS Secretary’s March 17, 2020 Declaration under the Public Readiness and Emergency Preparedness (PREP) Act for Medical Countermeasures Against COVID-19 may apply with respect to some private claims arising from the use or administration of a covered countermeasure, and may provide immunity from certain liability under Civil Rights Laws. Questions regarding the scope of the PREP Act under this guidance document should be directed to the HHS Office of the General Counsel.
Compliance Perspective
Failing to take reasonable steps to ensure that residents with LEP have meaningful access and are not discriminated against regarding their rights associated with their healthcare, even during a public health emergency, could result in a facility being charged with violating Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act, which prohibit entities receiving HHS-provided federal financial assistance from discriminating on the basis of race, color, and national origin (including LEP).
Discussion Points:
- Review policies and procedures to ensure they contain provisions and protocols for protecting the rights of persons with LEP, including the flexibility to use audio and video technologies to provide information designed to educate and prevent the spread of an infectious disease like COVID-19.
- Train staff on the rights of residents with LEP and the reasonable steps involved to provide their care, even in difficult circumstances like the COVID-19 crisis.
- Periodically audit to ensure that the needs of residents and staff with LEP are being reasonably accommodated.
COMMUNICATING WITH RESIDENTS AND OTHERS WHO SPEAK ENGLISH AS A SECOND LANGUAGE
