Developing a Language Access Plan

Practices that implement an appropriate language access plan can satisfy new federal regulations requiring physician practices and other health care entities to implement written “language access procedures.”¹ The regulations, effective July 5, 2024 with staggered compliance deadlines for the various requirements, apply to physician practices and other health care entities that receive funds from HHS. If your practice participates in HHS-administered programs such as Medicare, Medicaid, or CHIP, you must comply with section 1557 and the new 2024 implementing regulations.²  

Section 1557 of the Affordable Care Act prohibits discrimination based on race, color, national origin, sex, age, or disability.³ This means that when a potential patient whose primary language is Mandarin calls to make an appointment, you cannot refuse to schedule her because she needs an interpreter. Instead, assuming you are subject to Section 1557 regulations, you must follow your written language access procedures to ensure meaningful communication with the patient during her appointment. 

A language access policy or plan describes the procedures a practice will follow to ensure meaningful communication with individuals with limited English proficiency (LEP). Language access policies are necessary to ensure that a language barrier does not result in LEP patients receiving inferior care compared to English speakers.  

Many practices are unsure about what language services they must provide and what a language access policy must include. To help you get started, in this article MICA outlines new 2024 requirements for language access policies and procedures and discusses longstanding guidance from the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) about providing care to individuals with LEP. Incorporating the provisions discussed in this article into your written language access procedures and training staff to implement them will reduce the risk of regulatory investigations or lawsuits alleging discrimination. 

Consider a Language Access Plan Even if Your Practice is not Subject to Federal Regulations 

If your practice does not receive funds from Medicare, Medicaid or CHIP, or other forms of federal financial assistance, you should still consider implementing written language access procedures to reduce regulatory and medical professional liability risk and improve care for patients with LEP. Clinicians and staff can provide more efficient and effective care for patients with LEP when they follow standard procedures for identifying and documenting language barriers, arranging written and oral language services, and best practices when using an interpreter. 

Researchers who studied closed medical professional liability claims involving language barriers concluded: 

• In 91% of the cases, clinicians did not use “competent” interpreters⁴ and many times used the patient’s friends, family members, and even minor children.
  
• Over a third of the clinicians did not provide critical documents, such as informed consent forms and discharge instructions, in the patient’s language.
  
  
• Most cases involved poor documentation that failed to note the patient’s primary language or the need for language services to ensure effective communication.⁵ 

Some Fundamental Rules About Language Assistance Services 

Many practices are seeking black and white answers about whether and when interpreters and translators are required. For those practitioners and entities subject to section 1557 regulations, compliance is not one size fits all. HHS does not dictate a certain method to identify patients with LEP or how to obtain translator/interpreter services, and practices are permitted to scale procedures for language assistance as appropriate. 

Federal regulations require practices to take reasonable steps to ensure meaningful access for individuals with LEP.⁶ These “reasonable steps” differ depending on the size of the entity, acuity of care, and community and patient population demographics. A large hospital in Los Angeles likely needs a wider variety of written and oral language assistance more immediately available than a small primary care practice in Prescott or a solo pediatrician in rural Utah. 

Although language access policy specifics will differ between practices and organizations, there are multiple federal requirements that apply to all practices subject to section 1557. The following requirements⁷ and others discussed throughout this article should be incorporated into any language access procedure you develop:  

• When language services are needed and reasonable, they must be provided in a timely and accurate fashion, free of charge, protecting the privacy and independence of individual with LEP, and using qualified translators and/or interpreters.
   
• A practice’s obligation to provide language assistance services when reasonable and necessary is not limited to patients. Practices have the same duty to patients’ companions.⁸ Federal regulations define “companion” to mean a family member, friend, or associate of an individual seeking access to health care services, who along with such individual, is an appropriate person with whom a covered entity should communicate.⁹
   
• Never require patients to provide their own interpreters or translators.
   
• If staff translate, they must be “qualified bilingual/multilingual staff” as defined by federal regulation.¹⁰ Providing oral language assistance must be part of the employee’s job description. In addition, the employee must demonstrate proficiency in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized vocabulary, terminology and phraseology. The employee must also be able to effectively, accurately, and impartially communicate directly with individuals with LEP in their primary languages.
   
• Do not use a minor to interpret/translate except in an emergency involving an imminent threat to the safety or welfare of an individual or the public, or where no qualified interpreter is immediately available. Upon arrival of a qualified interpreter, he/she must confirm or supplement communications that have occurred. To read about a malpractice case involving a defendant that used a child to interpret, see MICA’s article Navigating Informed Consent with a Language Barrier.
   
• Do not use an adult accompanying an individual with LEP to interpret/translate unless the individual with LEP makes an independent, affirmative request in private, with a qualified interpreter present, and out of the presence of the accompanying adult.¹¹ Even where these requirements are met, a practice may be required to provide an interpreter where concerns about competence, confidentiality, privacy, or conflicts of interest exist. For example, a friend may not be competent to provide effective translation of an informed consent discussion involving specialized medical terms. Discussions and decisions about whether to use a family or friend as an interpreter should always be documented in detail in the medical record. 
   
• If there is an emergency involving an imminent threat to the safety and welfare of an individual or the public, or where no qualified interpreter services are immediately available, practices may use an accompanying adult as a temporary measure. Once a qualified interpreter arrives he/she must confirm or supplement any communications that took place before the interpreter's arrival.¹²
   
• Practices using video remote interpreting (VRI) services must comply with federal regulations to ensure that staff are adequately trained to set up and operate the equipment and the image quality is appropriate.¹³ These federal requirements should be incorporated into language access procedures if the practice uses VRI. For more information on these requirements, see sections 10-12 of MICA’s Auxiliary Aids and Services Policy Template. 

Conduct a Needs Analysis First 

Assessing the language assistance needs of your patient and potential patient population is a crucial first step in developing effective language access procedures. Practices may find it helpful to consult CMS’ Guide to Developing a Language Access Plan for more guidance regarding needs assessments. 

Basic Elements of Effective Language Access Policies 

After conducting a needs assessment, you will be ready to write your policy and procedures. The new 2024 regulations require language access procedures to be written, contain a revision date, and at a minimum include the following information: 

• Process staff will follow to identify whether a patient or companion has LEP;
   
• Process staff will follow to coordinate and schedule interpreter or translator services necessary to communicate effectively with the patient or companion; 
   
• Current list of names of any “qualified bilingual staff” that may be used to translate or interpret;
   
• List of electronic or written translated documents the practice maintains – including the date of issuance, languages available, and how to access; and
   
• Contact information for the Section 1557 coordinator – practices with 15 or more employees are required to designate a Section 1557 coordinator who maintains responsibility for ensuring the practice complies with section 1557 regulations.¹⁴ For more information about Section 1557 Coordinators, read New Regulations Focus on Anti-Discrimination in Health Care.

HHS encourages practices to utilize its language access planning resources or reference HHS's 2023 Language Access Plan for guidance.  

In addition to the minimum requirements for language access procedures, longstanding HHS Guidance recommends incorporating the following information:  

• List of oral and written language services to be provided; 
   
• Procedures for providing notice to LEP individuals that language assistance services are available;
   
• Process to ensure periodic monitoring and updating of the policy; and
   
• Process to ensure that the practice complies with federal requirements for training staff on language access procedures. For more information on training requirements, read New Regulations Focus on Anti-Discrimination in Health Care.

Identifying LEP Patients and Their Languages 

To determine what language services may be necessary for effective communication, a practice must first identify individuals with LEP and their primary languages. Ideally this will occur when the patient schedules an appointment for the first time, but it may not happen until he/she arrives in the office. Patients and companions with LEP should be encouraged to identify themselves, their primary language, and their language assistance needs. This can be done in a variety of ways: 

• Staff and clinicians should ask each patient about their primary language and any language assistance needs.
   
• Post federally mandated Notices of Discrimination and Notices of Availability of Language Assistance Services on websites, portals, and in the office to encourage patients to request language services. For more information on federal notice requirements, read New Regulations Focus on Anti-Discrimination in Health Care. 
   
• Use “I speak” cards which invite LEP patients to identify their language needs - available in a variety of languages at www.lep.gov. 

Document this information in the patient’s medical record where it can be easily referenced for future appointments.  

Oral Interpreter Services 

When oral interpreter services are necessary for meaningful, effective communication with patients or companions, the policy must identify staff members responsible for making these arrangements, the procedure for doing so, and any guidelines specific to oral interpretation situations.  

Your policy should also incorporate the following federal definition of “qualified interpreter” and include processes to ensure interpreters you use meet these requirements. A “qualified interpreter for an individual with LEP”¹⁵ means an interpreter who via a remote interpreting service or an on-site appearance:  

• Demonstrates proficiency in speaking and understanding both spoken English and at least one other spoken language (qualified interpreters for relay interpretation must demonstrate proficiency in two non-English spoken languages);
   
• Interprets effectively, accurately, and impartially to and from such language(s) and English (or between two non-English languages for relay interpretation), using any necessary specialized vocabulary or terms without changes, omissions, or additions and while preserving the tone, sentiment, and emotional level of the original oral statement; and
   
• Adheres to generally accepted interpreter ethics principles, including client confidentiality. 

In addition, MICA recommends the following best practices for optimizing patient care, ensuring compliance, and reducing medical professional liability risks: 

• If using bilingual staff as interpreters, develop a procedure to evaluate and select “qualified bilingual staff” based on the federal government’s definition of that term as discussed above in the Fundamental Rules section. Document the individual’s qualifications in their personnel file. Include the role of translator/interpreter as part of the individual’s written job description.
   
• Maintain a current list of interpreter services and a list of bilingual practice employees who are trained to translate. 
   
• Develop a detailed procedure for arranging interpreter services. Include contact information, hours of availability, and instructions for scheduling for each vendor used.  If the practice does not have a Section 1557 Coordinator, identify who will be responsible for making interpreter arrangements.
   
• Document in the patient’s medical record whenever oral interpretation services are used and the name of the interpreter.
   
• Particularly when an encounter involves a translated informed consent discussion, clinicians should carefully document the details of the discussion, including any patient questions.  

Written Translation Services 

To ensure meaningful access and protect the independent decision-making ability of individuals with LEP, practices should provide translation of documents that are critical to a patient’s ability to access care (known as “vital” documents).¹⁶ HHS offers the following examples of documents that may be vital: 

• Informed consent forms;
  
  
• Complaint forms;
  
  
• Intake forms that may have important health consequences;
  
  
• Written notices regarding eligibility criteria for, rights to, denial of, loss of, or decreases in benefits or services; and
  
  
• Notices advising individuals with LEP of free language assistance. 

Other documents that physicians and practices should consider translating include: 

• Documents requiring the patient’s signature; 
  
  
• Encounter summaries given to patients; and
  
  
• Any documents given to the patient that contain treatment recommendations, follow-up instructions, and medication information and instructions. 

When developing a library of translated documents, use “qualified” translators as defined by federal regulations. A “qualified translator”:  

• Demonstrates proficiency in writing and understanding documents written in English and at least one other written non-English language;
   
• Translates effectively, accurately, and impartially to and from such language(s) and English, using any necessary specialized vocabulary or terms without changes, omissions, or additions and while preserving the tone, sentiment, and emotional level of the original written statement; and
   
• Adheres to generally accepted translator ethics principles, including client confidentiality.¹⁷ 

Federal regulations also require that translations performed by “machine translation” must be reviewed by a qualified human translator when the document is critical for meaningful access, accuracy is essential, or the document contains complex, non-literal or technical language.¹⁸ “Machine translation” means “automated translation, without the assistance of or review by a qualified human translator, that is text-based and provides instant translations between various languages, sometimes with an option for audio input or output.”¹⁹

In addition, when developing a procedure for translation of written materials, consider including the following: 

• Determine a procedure for consistent review of patient forms and documents. Determine whether the information is vital to the care and services provided, considering the consequences for the patient if the information is not communicated accurately or in a timely manner.
   
• Based on demographics of the patient population (or potential patient population), decide what languages are needed for translated documents.
   
• Designate a staff member responsible for coordinating translation of selected documents. Document translator qualifications and ensure they meet the definition outlined above.
   
• Both English and translated versions of documents should be used during encounters (so staff have a copy they can read as well). Include both versions in the medical record.
   
• Include benchmarks to expand translation of documents into additional languages over time. 

Periodically Review the Policy 

The practice’s designated Section 1557 Coordinator or the staff member in charge of the policy should regularly review the language access policy to determine if any changes or updates are warranted. To determine whether the policy is efficient and effective, some factors to consider include: 

• Any complaints filed related to language access services;
  
  
• Feedback from individuals with LEP;
  
  
• Whether to add or remove any of the language assistance services offered based on current demographics or current needs of LEP population; and
  
  
• Whether any changes are necessary to improve efficiency of procedures for identifying individuals with LEP and arranging for language services. 

Final Takeaways 

Effective communication with all patients is critical for achieving good outcomes and for fostering trust and rapport. Whether subject to federal regulations or not, all clinicians and practices can realize benefits from providing language assistance services to patients when reasonable and necessary.  

^{[1] 45 CFR § 92.8(d)}

^{[2] Id. at § 92.4}

^{[3] Id. at § 92.1} 

^{[4] The High Costs of Language Barriers in Medical Malpractice. The study defined a competent interpreter as a professional interpreter or bilingual staff; knowledgeable in ethics, standards of practice, confidentiality, the interpreter’s role, and medical terminology in both languages.} 

^{[5]  Id.}

^{[6] 45 CFR at § 92.201(a)}

^{[7] Id. at § 92.201(b), (c) & (e)}

^{[8] Id. at § 92.201(a)}

^{[9] Id. at § 92.4}

^{[10] Id.}

^{[11] Id. at § 92.201(e)(2)(ii)}

^{[12] Id. at § 92.201(e)(2)(i)}

^{[13] Id. at § 92.201(f)(1)-(4)}

^{[14] Id. at § 92.8(d)}

^{[15] Id. at § 92.4}

^{[16] Practitioners contracting with Arizona AHCCCS plans are required to translate all written materials into Spanish, regardless of whether they are vital.}

^{[17] 45 CFR § 92.4}

^{[18] Id. at § 92.201(c)(3)}

^{[19] Id. at § 92.4}