communicating with lep clients: requirements and resources · 2016 . [email protected] the need...
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Communicating With LEP Clients:
Requirements and Resources
Mary Esther Diaz, M.Ed.
Translator and Interpreter Trainer
2016
The Need
25 million persons in U.S. are “limited English Proficient” (LEP)
LEP individuals face many barriers to critical health and social services
Language barriers often result in an inability to access programs, unsatisfactory encounters, and possible negative personal or healthcare outcomes
Applicability to Texas
Per Modern Language Association:
14.7 million people in Texas speak English
7.6 million people in Texas speak another
language
6.5 million people in Texas speak
Spanish
168+ thousand people in Texas speak
Vietnamese
93+ thousand people in Texas speak
Chinese
County City
Bexar San Antonio
Dallas Dallas
Harris Houston
Potter Amarillo
Tarrant Fort Worth
Taylor Abilene
Travis Austin
The Requirement
From: Language Services Action Kit, National Health Law Program & The Access Project 2003
Federal law and guidelines require that all
recipients of federal funding must provide
meaningful access to services to individuals
with limited English proficiency.
$71 million dollar word
Florida 1984
“Misinterpretation of a single Spanish word
(Intoxicado misinterpreted in this case to mean
“intoxicated” instead of its intended meaning of
‘feeling sick to the stomach’) led to a
$71 million dollar malpractice settlement
associated with a potentially preventable case of
quadriplegia.”
Harsham P. A “Misinterpreted word worth $71 million.” Med Econ. June 1984; 61:289-292.
The Requirement
It is the LAW
Title VI of the Civil Rights Act of 1964
HHS Policy Guidance on the Prohibition Against National Origin Discrimination as it Affects Persons With Limited English Proficiency
DOJ "Enforcement of Title VI of the Civil Rights Act of 1964 - National Origin Discrimination" (LEP Guidance)
US Department of Education: Schools' Civil Rights Obligations to English Learner Students and Limited English Proficient Parents
Executive Order 13166
Section 1557 of the Affordable Care Act of 2010
Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.)
In 1964, Congress passed Title VI of the Civil
Rights Act. This is a civil rights law that
prohibits discrimination. Its purpose is to
ensure that federal money is not used to
support providers or others who discriminate
on the basis of race, color, or national origin.
Title VI of the Civil Rights Act of
1964
The first ruling and the most widely recognized:
“No person in the United States shall, on
grounds of race, color or national origin, be
excluded from participation in, be denied the
benefits of, or be subjected to discrimination
under any program or activity receiving
Federal financial assistance.”
Types of Federal Financial
Assistance
Medicare, Medicaid, CHIP
Funding for Hospitals, Public Health Clinics,
Departments of Health, Nutrition Sites
Funding for Transportation, Police,
Corrections/Jails, Courts
Funding for Schools
Dept. of Justice LEP Guidance
Title VI's prohibition of discrimination on the
basis of national origin has been interpreted by
courts to include discrimination on the basis of
English proficiency. Under Title VI (and the
Safe Streets Act), recipients are required to
provide LEP individuals with meaningful
access to their programs and services..
DOJ Regulations
Providing "meaningful access" will generally involve some combination of oral interpretation services and written translation of vital documents
Texas requires the use of licensed court interpreters to comply with these regulations.
Department of Education
The obligation not to discriminate based on race,
color, or national origin requires public schools
to take affirmative steps to ensure that limited
English proficient (LEP) students, now more
commonly known as known as English
Learner (EL) students or English Language
Learners (ELLs), can meaningfully participate
in educational programs and services, and to
communicate information to LEP parents in a
language they can understand.
http://www.lep.gov/faqs/faqs.html
Executive Order 13166
The Executive Order requires federal agencies that provide federal financial assistance to develop guidance to clarify those obligations for recipients of such assistance ("recipient guidance").
ACA § 1557
This provision extends the application of
Title VI (among other existing federal civil
rights laws) prohibiting discrimination on the
basis of race, color or national origin to:
any health program or activity receiving federal
financial assistance;
any program or activity administered by an
executive agency; or
any entity established under Title 1 of ACA
(e.g. Exchanges).
The Joint Commission
The new and revised elements of
performance (EPs) address the following
issues:
● Addressing qualifications for language
interpreters and translators (HR.01.02.01,
revised EP 1)
● Identifying patient communication needs
(new PC.02.01.0X*, EP 1)
● Addressing patient communication needs
(new PC.02.01.0X*, EP 2)
The Joint Commission
● Collecting race and ethnicity data
(RC.02.01.01, revised EP 1)
● Collecting language data (RC.02.01.01,
revised EP 1)
● Patient access to chosen support individual
(RI.01.01.01, new EP Y*)
● Non-discrimination in patient care
(RI.01.01.01, new EP Z*)
● Providing language services (RI.01.01.03,
revised EPs 2 and 3)
Risk of Not Complying with Title VI
Potential liability when language services are not provided:
Clients unable to access eligible services or programs
Clients unable to exercise important rights
Clients unable to comply with provider requirements and requests
Risks (continued)
Longer “contact” times equals ineffective time management; productivity is affected
Frustration on both sides: impairs relationship building with patients and their community, decreases credibility of programs/staff
Lost opportunities to outreach on important issues affecting LEP communities
Incurring “hidden” costs due to unnecessary testing and diagnostics, over-prescribing, repeat visits, etc.
Who can you use as an interpreter?
Language assistance options:
Trained bilingual staff (other primary tasks with interpreter duties as adjunct)
On-staff interpreters (employees of the organization with specific interpreter duties only)
Contract interpreters (non-employee contractors paid by the encounter, on-call basis)
Telephone interpreters (contracted agency specializing in the provision of interpreter services via phone)
Least Preferred Options
Family or friends
Minor children
Untrained volunteers
Patients/patients waiting in the office
This is Why!
Using family, friends, minor children, volunteers, strangers and other patients:
Exposes the agency to liability under Title VI
May result in a breech of confidentiality
May result in the patient being reluctant to fully disclose critical information
Increases agency liability due to their not being competent
May result in additions, omissions and changes in content of communication
May destroy the “power base” within the family
Interpreter Qualifications
Language fluency in both the target language and English
Language range sufficient to meet the needs
Training in the role of the interpreter including ethics, confidentiality, cultural considerations and managing the flow of the encounter
No potential conflict of interest, breech of confidentiality or inappropriate advocacy
Bilingualism alone does NOT equal competency
as an interpreter
Working With Interpreters
Ask the interpreter to:
Introduce him/herself to the patient
Assure the client of confidentiality
Interpret everything that the client and you say to each other
Avoid side-conversations with the client
Let you know if they need you to stop, slow down, or explain a word
Sit or stand next to client, facing you
Working With Interpreters
You should:
Speak directly to the client (not “ask her ___”)
Use short phrases and lay terminology
Stop to allow interpreter to speak
Avoid side-conversations with interpreter
Avoid interfering with interpretation
If several people in the room, ask them to speak one at a time so interpreter can interpret
Avoid asking interpreter to wear two hats at the same time (interpreter and nurse, teacher)
Maintain control of the interview
Four-Factor Analysis
An individualized assessment that balances
the following four factors:
1. Number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
2. Frequency with which LEP individuals come in contact with the program;
3. Nature and importance of the program, activity, or service provided by the program to people's lives; and
4. Resources available to the grantee/recipient and costs.
Safe Harbor
Actions considered strong evidence of
compliance with written-translation obligations:
Written translations of vital documents for
each eligible LEP language group that
constitutes 5% or 1000, whichever is less, of
population served
If 5% includes less than 50 persons, providing
oral interpretation of written materials and
notice of such right
Find a Translator or Interpreter
Translation
Face-to-Face Interpreting
Over-the-Phone Interpreting
See Handout
Where To Get Help
Austin ISD
Department of School, Family & Community
Education
Maria Arabbo, Refugee Family Support Specialist
(512) 414-0545 [email protected]
Consultant
Esther Diaz, Translator and Interpreter Trainer
512-731-5266 [email protected]
Resources
Executive Order 13166:
http://www.justiceogOY/crt/corlPubs/eoIep.pdf
DOJ LEP Guidance:
http://www.justice.gov/crt/cor/lep/DOJFinLEPFRJunI82
002.php
Website of the Federal Interagency Working Group on LEP:
http://www.lep.gov
Top Tips from responses to the 2006 language access survey
of federal agencies:
http://www.lep.gov/resources/2008_Conference_
Materials/TopTips. pdf
GSA Language Services Schedule:
http://www.gsa.gov/portal/contentlI04610
Resources
Resources (continued)
The 2006 Language Access Survey:
http://www.lep.gov/resources/2008_Conference_Materi
als/ FedLangAccessSurvey.pdf
I Speak Language Identification flashcards:
http://www. lep.gov/ISpeakCards2004.pdf
LEP rights brochure:
http://www.lep.gov/resources/lep_aug2005.pdf
OCR Complaint Forms
http://www2.ed.gov/about/offices/list/ocr/complaintintro.html
Civil Rights Division of the US Dept. of Justice
https://www.justice.gov/crt
References
Families USA, Minority Health Newsletter
www.familiesUSA.org
Limited English Proficiency Federal Interagency Website
- www.lep.gov
National Health Law Program - www.healthlaw.org
National Council on Interpreting in Health Care (NCIHC) – www.ncihc.org
The Language Portal -
www.migrationinformation.org/integration/language_portal
• US Department of Education: Schools' Civil Rights Obligations to English Learner Students and Limited English Proficient Parents
- www2.ed.gov/about/offices/list/ocr/ellresources.html