Effective Communication LEP, Hard of Hearing, and Visually Impaired Individuals Robert Chirila, Equal Opportunity Specialist U.S. Dept. of Health & Human Services, Office for Civil Rights (2018)

Disclosures Disclosures No conflicts to disclose

Learning Objectives Learning Objectives Upon completion of this knowledge-based activity, the participants will be able to: Assess whether individuals are limited English proficient (LEP) and determine whether they may require auxiliary aids and services. Identify their responsibilities to ensure meaningful access to their programs, activities and services by LEP persons. Identify their responsibilities to communicate effectively with individuals with hearing and visual impairments.

Test Test: True or False Pharmacies are not required to provide language assistance to limited English proficient persons. Pharmacies are not required to allow customers with service animals into their facilities. Pharmacies do not have to provide auxiliary services to persons with hearing and visual impairments.

Test Test: True or False Pharmacies are not required to provide language assistance to limited English proficient persons. False Pharmacies are not required to allow customers with service animals into their facilities. False Pharmacies do not have to provide auxiliary services to persons with hearing and visual impairments. False

HHS/OCR Who we are and What we do OCR is the Department’s civil rights, conscience, and religious freedom, and health privacy rights law enforcement agency. To ensure understanding of and compliance with non-discrimination and health privacy laws, OCR: Investigates complaints Enforces rights Promulgates regulations Develops policy Provides technical assistance and public education

Jurisdiction and Authority Program Jurisdiction HHS/OCR Jurisdiction and Authority Program Jurisdiction State agencies Outpatient rehabilitation clinics Medical schools & other health care programs Public health clinics Rural health agencies Welfare programs Adult day activity programs Hospitals Home health agencies and hospices Nursing homes Substance abuse treatment centers Area agencies on aging Pharmacies Day care centers Medicaid Health Mgt. Organizations (HMOs) Child service agencies

Who is Covered Who is Covered? All recipients of HHS Federal financial assistance (FFA), either directly or indirectly, through a grant, contract or subcontract.

Who is a Limited English Proficient (LEP) Person? An LEP individual is a person who does not speak English as his or her primary language; and who has a limited ability to read, write, speak or understand English.

LEP Statistics Over 25 million persons are limited English proficient (LEP) Over 58 million people speak a language other than English at home 8 million increase since 2000 19.7% of the population Over 80% of hospitals, general internists, and Federally qualified health clinics treat LEP patients frequently

LEP Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act LEP The Law: Title VI of the Civil Rights Act No person in the United States shall on the ground 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. Section 601 of Title VI of the Civil Rights Act of 1964 42 U.S.C. Section 2000d et. seq

Discrimination on the Basis of Race, Color and National Origin LEP Discrimination on the Basis of Race, Color and National Origin Title VI of the Civil Rights Act of 1964 (Title VI) prohibits discrimination on the basis of race, color, or national origin in all programs assisted by Federal money. Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.

Practices Prohibited on the Basis of Race, Color, or National Origin LEP Practices Prohibited on the Basis of Race, Color, or National Origin Deny an individual a service, aid or other benefit Provide a benefit, etc. which is different or provided in a different manner Subject an individual to segregation or separate treatment Restrict an individual in the enjoyment of benefits, privileges, etc. Treat an individual differently in determining eligibility Deny a person opportunity to participate on a planning board

LEP Practices Prohibited on the Basis of Race, Color, or National Origin (Cont’d) May not use any criteria or methods of administration that have the effect of subjecting individuals to discrimination or have the effect of defeating or substantially impairing accomplishment of a program’s objective(s) with respect to persons of a particular race, color, or national origin Select sites or locations of facilities that will exclude individuals on the basis of race, color, or national origin

The Connection National Origin & LEP How do the protections against national origin discrimination apply to limited English proficient (LEP) individuals? The failure of a covered entity to provide language assistance services to LEP individuals may constitute national origin discrimination.

The Supreme Court Decision LEP The Supreme Court Decision Title VI prohibits conduct that has a disproportionate effect on LEP persons because such conduct constitutes national-origin discrimination. Lau v. Nichols, 1974

Principles for Communicating with LEP Individuals A covered entity must take reasonable steps to provide meaningful access to each LEP individual eligible to be served or likely to be encountered in its health programs and activities. Reasonable steps may include the provision of language assistance services, such as oral language assistance or written translations. A covered entity is expected to offer a qualified interpreter when oral interpretation is a reasonable step to provide an individual with meaningful access. Where language services are required, they should be provided free of charge and in a timely manner.

Principles for Communicating with LEP Individuals (Cont’d) Using the Four-Factor Analysis to determine the level of response: Number or Proportion of LEP persons eligible to be served or likely to be affected by the program or service Frequency of Contact Nature and Importance of the program, activity, or service Costs and resources available. How many LEP persons are eligible to be served, or likely to be affected, by a recipient program or activity? Potential sources of data may include: Encounter data Data from Census, school system, state and local government Community organizations. (2) How often is a particular language encountered? (3) How important is the recipient’s activity, information, service, or program? What are the possible consequences if effective communication is not achieved? Could denial or delay of access to services or information have serious life-threatening implications? (4) What are the costs associated with providing language assistance services What resources are available?

Principles for Communicating with LEP Individuals (Cont’d) A covered entity must adhere to certain quality standards in delivering language assistance services. For instance, a covered entity may not: Require an individual to provide his or her own interpreter Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified interpreter immediately available Rely on interpreters that the individual prefers when there are competency, confidentiality or other concerns Rely on unqualified bilingual or multilingual staff Use low-quality video remote interpreting services

Language Assistance Program LEP Example of a Language Assistance Program Regular assessments of language needs Correct identification of LEP persons Policies and procedures Notice of language assistance services Staff training Ongoing monitoring of the language assistance services provided

Language Assistance Services LEP Options for Providing Language Assistance Services Bilingual staff Staff interpreters Contractors Telephone lines and video teleconferencing Community volunteers

Selecting Language Assistance Services LEP Selecting Language Assistance Services There are two major considerations to be addressed in selecting services: Competency Timeliness Note: Recipients have flexibility in determining the appropriate mix of language assistance services provided, but must ensure the quality and accuracy of such services.

Interpreter Competency LEP Interpreter Competency The recipient should take reasonable steps to assess that the interpreter is able to: Demonstrate proficiency in both English and in the other language Demonstrate knowledge of specialized terms or concepts Demonstrate an understanding of the need for confidentiality and impartiality Understand the role of interpreter

LEP Timeliness When language assistance is needed, it should be provided at a time and place that avoids the effective denial or delay of the service, or benefit.

LEP Written Translations: What should be Translated and into what Languages? Translate Vital Documents Those documents critical to access/participation in a program or service Distinction should be made between languages that are frequently-encountered and less commonly-encountered languages

Example of National Origin Discrimination LEP Example of National Origin Discrimination A physician at a hospital’s emergency department denied an LEP mother a Spanish interpreter when she requested language assistance. Instead, the physician used the mother’s 13-year-old son as the interpreter, while he was being treated for a dog bite. The hospital also failed to translate or orally explain the discharge instructions in Spanish.

Use of Family Members or Companions as Interpreters LEP Use of Family Members or Companions as Interpreters An adult family member or companion may be used: In an emergency involving an imminent threat to safety or welfare where there is no qualified interpreter immediately available; or Where the LEP individual specifically requests that the family member or companion interpret, the person agrees, and reliance on the family member or companion is appropriate under the circumstances.

Risk of Using Family Members or Friends as Interpreters LEP Risk of Using Family Members or Friends as Interpreters Family and friends may: Not be proficient in complex terminology Fail to possess the necessary skills and ethical training to interpret Not be emotionally able to handle sensitive personal information being conveyed (especially children) Un/intentionally omit or alter critical information (circumstances involving domestic violence)

Effective Communication for Individuals who are Deaf or Hard of Hearing or Visually Impaired

Effective Communication Statistics Statistics Reported by the National Institute on Deafness and Other Communication Disorders (NIDCD) Approximately 37.5 million American adults report trouble hearing. About 28 million of U.S. adults could benefit from using hearing aids. 25% of adults aged 65 to 74 have disabling hearing loss 50% of adults who are 75 and older have disabling hearing loss. 2 to 3 out of every 1,000 children in the U.S. are born with a detectable level of hearing loss. 9 out of 10 deaf children are born to hearing parents. December 15, 2016

Effective Communication Statistics National Federation of the Blind 2015 Statistics: Total (all ages): 7,297,100 (2.3%) Total (16 to 75+): 6,833,000 (2.7%) Women: 3,738,400 (2.87%) Men: 3,094,600 (2.53%) Age 16 to 64: 3,847,100 (1.9%) Age 65 and older: 2,985,900 (6.4%)

Effective Communication The Law Section 504 prohibits discrimination on the basis of disability in programs and activities that receive FFA. Title II of the ADA prohibits discrimination on the basis of disability by a State or local government and protects against retaliation/intimidation. Title II applies to public entities. Title III of the ADA applies to places of public accommodation Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.

Effective Communication Prohibited Activities Recipients may not, on the basis of disability: Deny the opportunity to participate in or benefit from any aid, benefit, or service; Provide an aid, benefit, or service, that is not equal to that provided to others, or that is not as effective as that provided to others; Provide different or separate aids, benefits, or services (unless necessary to provide aids, benefits, or services that are as effective as those provided to others); Deny the opportunity to participate on planning or advisory boards; Otherwise limit the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

Effective Communication “Disability” defined For the purpose of these civil rights laws, disability is defined as a physical or mental impairment that substantially limits one or more major life activities. Definition includes an individual who: Has a disability; Has a history of having a disability; or Is regarded as having a disability. Includes Individuals who are deaf and hard of hearing.

Effective Communication Effective Communication & Auxiliary Aids and Services A public entity shall: Take appropriate steps to ensure communications with persons with disabilities are as effective as with others Furnish appropriate auxiliary aids and services to afford an individual with a disability an equal opportunity to benefit from services When deciding what type of auxiliary aid or service is necessary, give primary consideration to the request of the individual with a disability

Effective Communication Auxiliary Aids and Services A covered entity must provide auxiliary aids and services to individuals with disabilities free of charge and in a timely manner when necessary to ensure an equal opportunity to participate in and benefit from the entity’s health programs or activities. A covered entity may not: Require an individual to provide his or her own interpreter Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified interpreter immediately available Rely on interpreters that the individual prefers when there are competency, confidentiality or other concerns Rely on unqualified staff interpreters Use low-quality video remote interpreting services

Effective Communication Examples of Auxiliary Aids Sign language interpreters Computer Assisted Real-time Transcription Text telephones - TTD/TTY machines Documents in large print type Materials in Braille Large print materials Captioning Screen reader software Video remote interpreting services Talking Pill Caps, talking labels Note: No fees or surcharges for auxiliary aids and services.

Effective Communication Individualized Determination The Pharmacy should make an individualized determination that takes into account: The needs and circumstances articulated by the individual The type of communication expected: Length of communication Purpose of communication (type of service: filling prescriptions, the provision of Vital Documents containing prescription drug information, counseling, enrollment in prescription drug discount programs, etc.) Complexity of information being communicated Reminder: This individualized determination is different from the LEP four-factor analysis.

Effective Communication Video Remote Interpreting (VRI) An interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images VRI Standards require: Video and audio that is high quality, clear, real-time, with clear uninterrupted images. Dedicated high-speed connection. Picture: clear, sufficiently large, and sharply delineated, showing face, arms, hands and fingers Voices: clear and easily understood transmission. Quick set-up and training of users.

Effective Communication Administrative Requirements (Section 504) Designate Section 504 Coordinator Policy and procedure on effective communication Post Non-Discrimination Policy Section 504 Grievance Procedure

Effective Communication Administrative Requirements (Section 1557) Effective Oct. 17, 2016 Applies to all covered entities Must post a nondiscrimination notice Seven elements required in the notice May combine the content of the notice with other notices Must post at least 15 taglines Posting requirements In significant publications and significant communications (except those that are small-size) In conspicuous physical locations where the covered entity interacts with the public On the covered entity’s website, accessible from the home page

Effective Communication Administrative Requirements (Section 1557) Seven elements required in the nondiscrimination notice The covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities The covered entity provides appropriate auxiliary aids and services The covered entity provides language assistance services How to obtain auxiliary aids and services and language assistance services If applicable, the name and contact information for the compliance coordinator If applicable, the availability of the covered entity’s grievance procedure and how to file a grievance How to file a discrimination complaint with OCR

Effective Communication Administrative Requirements (Section 1557) In small-size significant publications and significant communications, each covered entity must post: A nondiscrimination statement At least 2 taglines Appendix A to the final rule - sample notice of nondiscrimination and nondiscrimination statement Appendix B to the final rule - sample tagline

Effective Communication Example of Disability Discrimination A hospital denied a visually impaired woman her request for a consent form in an alternative format that was accessible to her. The woman informed the hospital that she could access the information on the form if it was provided in large print or an accessible electronic format that she could read with her screen reader, but the hospital provided her with neither. A hospital provided individuals who are deaf or hard of hearing with sign language interpreters through an ineffective video relay interpreting device. The hospital operated the device through an unreliable internet connection, which produced irregular pauses and blurry images during the individuals’ medical appointments.

Effective Communication Local Enforcement Concerns Consider Who you are using as an Interpreter Who is a qualified interpreter for a deaf or hard of hearing individual? Certified does not necessarily mean qualified Qualified=able to interpret effectively, accurately and impartially (both receptively and expressively) using any specialized vocabulary required by the circumstances How do you assess if the interpreter is qualified/competent?

Effective Communication Local Enforcement Concerns Common Questions about Interpreters: Do you have to provide an interpreter for every encounter? Do you have to defer to the patient’s preference for a specific interpreter or interpreter agency? What if the patient refuses your offer of an interpreter, but you still have concerns regarding the effectiveness of communication (or other concerns, such as confidentiality)? Do you need a HIPAA authorization to use an interpreter? www.hhs.gov/hipaafaq/providers/business/760.html Staff Training Tips: Be careful not to directly or indirectly discourage requests for interpreters Even if the patient does not request an interpreter, the provider has the responsibility to make an individualized determination Document the offer (and whether the patient refuses) in the medical record

Effective Communication Local Enforcement Concerns Control Misconceptions About Deaf or Hard of Hearing Individuals Great diversity within the community Able to Speak, Able to Hear or Lip-Read ASL its own language – writing notes is often not sufficient, and there may be literacy issues ASL is the predominant sign language in the U.S., but even within the U.S., will reflect certain regional or local “dialects” Importance of reaching out to community resources Why haven’t we received more complaints from deaf or hard of hearing individuals? Why don’t we see many deaf or hard of hearing individuals at our facility?

Effective Communication Local Enforcement Concerns Telephonic Communications Ensuring that your staff knows how to access the free New York State/New Jersey State 711 Relay Service If you receive calls from hearing individuals, you must be able to receive calls from deaf or hard of hearing individuals If you permit your hearing patients to place calls on “more than an incidental convenience basis,” you must permit your deaf or hard of hearing patients to place calls via TTY/TDD

Service Animals Service Animals

Definition of Service Animal Service Animals Definition of Service Animal Any dog that is individually trained to do work for perform tasks for the benefit of an individual with a disability Only dogs are recognized. Examples of work or tasks: guiding people who are blind, alerting people who are deaf, pulling a wheelchair, calming a person with PTSD during an anxiety attack. Other species of animal, whether wild or domestic, trained or untrained, are not service animals. The work or tasks of performed by the service animal must be directly related to the handler’s disability. If a dog’s sole function is to provide comfort or emotional support, the dog does not qualify as a service animal under the ADA.

Service Animals A service animal may be removed from the premises if: The animal is out of control and the handler does not take effective action to control the animal, or The animal is not housebroken A service animal must be on a harness, leash, or tether unless the handler is unable to use due to a disability or the use would interfere with the service animal’s performance of work or tasks Special rule for miniature horses

Service Animals Service Animals A covered entity may ask the individual with a disability questions about the service animal in limited circumstances. When it is not obvious what service an animal provides, staff may ask only two questions: Is the dog a service animal required because of a disability? What work or task has the dog been trained to perform? Staff may not ask about the person’s disability, require medical documentation, special identification or training documentation for the dog or ask that the dog demonstrate his or her ability to perform the work or task.

Effective Communication Resources http://www.hhs.gov/ocr For assistance from OCR in other languages, please visit: https://www.hhs.gov/ocr/get-help-in-other-languages/index.html Join us on Twitter @hhsocr

Contact Robert Chirila, Equal Opportunity Specialist Office for Civil Rights, U.S. Department of Health and Human Services 26 Federal Plaza, Suite 3312 New York, New York 10278 Phone:212-264-8900 Fax: 212-264-3039 Email: robert.chirila@hhs.gov 1 55