Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of national origin in healthcare. One form of national origin discrimination is failure to provide meaningful access to individuals with limited English proficiency (LEP) when required by law.
Section 1557 requires covered dental practices to take reasonable steps to ensure meaningful access to individuals with LEP. The U.S. Department of Health and Human Services (HHS) encourages, but does not require, covered dental practices to produce language access plans and offers guidance.
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Sample Interpreter and Translator Agreement In evaluating whether a dental practice is in compliance with the requirement to take reasonable steps to ensure meaningful access, the HHS Office for Civil Rights (OCR) may assess how the dental practice balances the following four factors:
- The number or proportion of individuals with LEP eligible to be served or likely to be encountered in the eligible service population;
- The frequency with which LEP individuals come in contact with the entity’s health program, activity, or service;
- The nature and importance of the entity’s health program, activity, or service; and
- The resources available to the entity and costs.
When Section 1557—in light of the dental practice’s individualized assessment of the above four factors—requires providing language assistance services, such services must be provided free of charge, be accurate and timely, and protect the privacy and independence of the individual with LEP. Language assistance services may include:
- Oral language assistance, including interpretation in non-English languages provided in-person or remotely by a qualified interpreter for an individual with LEP, and the use of qualified bilingual or multilingual staff to communicate directly with individuals with LEP; and
- Written translation, performed by a qualified translator, of written content in paper or electronic form into languages other than English.
Whenever Section 1557 requires a dental practice to provide interpreter services, the dental practice must provide an interpreter who:
- Adheres to generally accepted interpreter ethics principles, including client confidentiality;
- Has demonstrated proficiency in speaking and understanding at least spoken English and the spoken language in need of interpretation; and
- Is able to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology.
Where Section 1557 requires a dental practice to provide translation services for written content (in paper or electronic form), the dental practice must provide a translator who:
- Adheres to generally accepted translator ethics principles, including client confidentiality;
- Has demonstrated proficiency in writing and understanding at least written English and the written language in need of interpretation; and
- Is able to translate effectively, accurately, and impartially, to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology.
If remote audio interpreting services are required to comply with Section 1557, the dental practice must provide:
- Real-time audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality audio without lags or irregular pauses in communication;
- A clear, audible transmission of voices; and
- Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the remote interpreting services.
High-quality video remote interpreting (VRI) services for LEP individuals was required under the old Section 1557 rules. Under the new rules, high quality VRI is only required where necessary to provide meaningful access to LEP individuals.
If a dental practice is required by Section 1557 to provide interpretation services, the dental practice must not:
- Require the individual with LEP to provide their own interpreter,
- Rely on an adult accompanying an individual with LEP to interpret or facilitate communication, except: In an emergency involving an imminent threat to the safety or welfare of an individual or the public, where there is no qualified interpreter for the individual with LEP immediately available or; Where the individual with LEP specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances
- Rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public, where there is no qualified interpreter for the individual with LEP immediately available, or
- Rely on staff other than qualified bilingual/multilingual staff to communicate directly with individuals with LEP.
If a dental practice is covered by HIPAA, an interpreter it provides who is not a staff member will likely be a business associate. The ADA sample interpreter and translator agreement contains representations and warranties concerning the above requirements, as well as business associate provisions.
Acceptance of language assistance services is not required. Nothing in Section 1557 requires an individual with LEP to accept language assistance services. ADA Member Advantage endorses CyraCom, a provider of phone and video interpretation.