Telehealth Law: Healthcare Translation Services for Limited English Proficient People

One often neglected legal requirement by telehealth practitioners involves translation or language access services for limited English proficient (LEP) patients. This article will outline the federal and state laws, when and to whom they apply, then offer two case scenarios (one medical, another behavioral) to illustrate how they typically work in telehealth and relevant resources.

Laws to Better Serve Limited English-Proficient People

Federal LEP Laws

The federal provisions for limiting healthcare disparities between people with limited language proficiency are based on civil rights laws, including Title VI of the Civil Rights Act of 1964 and the Affordable Care Act (ACA).

The following are some key points to consider:

• Civil Rights Act of 1964, Title VI. Prohibits discrimination based on race, color, or national origin in programs and activities that receive federal financial assistance. This law applies to includes hospitals, clinics, and other healthcare providers that receive federal funding in any form, including Medicare or Medicaid. Under Title VI, healthcare providers must take reasonable steps to ensure effective communication with LEP patients, which may include providing interpreter services.
• Affordable Care Act (ACA). Section 1557 of the ACA prohibits discrimination in healthcare based on race, color, national origin, sex, age, or disability. The US Department of Health and Human Services (HHS) issued regulations under Section 1557, including language access services requirements. These regulations require covered entities, including healthcare providers, to provide meaningful access to LEP individuals, possibly providing interpreters or language assistance services for people who prefer to receive services in languages other than English, including sign language for deaf and hard-of-hearing people.

State LEP Laws

Many states in the US have language access laws, particularly those with diverse populations and large numbers of non-English speakers. In contrast, other states might have less comprehensive or specific laws, leading to potential disparities in the quality and accessibility of language services for LEP individuals. Tracking and adhering to these differences can pose challenges to practitioners who work in multiple states.

State LEP laws typically aim for public services, including healthcare and education. The details, such as the size of the facility, type of service, and specific languages required, can also change depending on the state. Additionally, some healthcare facilities and specialty independent practice or small group professionals voluntarily provide interpreter services without legal requirements, recognizing the importance of effective communication for patient safety and quality of care.

States requiring some of the most comprehensive LEP laws include the following:

• California. California’s Dymally-Alatorre Bilingual Services Act requires that state and local agencies provide language services when many non-English speaking people access them. The Department of Managed Healthcare (DMHC) also manages the relevant laws and regulations for California practitioners and their employers. Interested parties can search the DMHC violation database to see if specific parties have been found guilty of violating the CA laws related to LEP. 
• Florida. In Florida, hospitals must provide interpreter services to patients with limited English proficiency.
• Illinois: Illinois law mandates that healthcare providers offer interpretation and translation services to patients with limited English proficiency.
• Massachusetts. In Massachusetts, healthcare providers that receive state funding must provide interpreter services to patients with limited English proficiency.
• New York. New York State is firmly committed to ensuring language access for all individuals, and multiple laws and policies are in place to uphold these rights. The Office of Language Access is to the website to find information about the New York State Language Access Policy, which requires all state agencies and hospitals to provide free interpretation and translation services for individuals with Limited English Proficiency (LEP). This mandate is detailed in the New York State Hospital Patient Bill of Rights, which states that patients have a right to an interpreter if they do not speak or understand the primary language the healthcare provider uses. For healthcare providers accepting Medicaid, New York law requires that they provide interpretation and translation services to Medicaid recipients with LEP. This law also includes provisions that healthcare providers should respect the cultural differences that may affect a patient’s healthcare.
• Texas. Texas Administrative Code states that health maintenance organizations and insurers must provide language assistance services to members with limited English proficiency, including interpretation and translation services.
• Washington. Washington State law requires that all hospitals provide interpreter services to patients with limited English proficiency.

Other Groups Supporting LEP Patients

The US Department of Health and Human Services and the National Council on Interpreting in Health Care have established national standards for medical interpreting, outlining the importance of qualified medical interpreters in delivering healthcare in the United States. Their work has led to several research publications, such as the AMA Journal of Ethics article that offers an impactful medical case study by authors Gaurab Basu and colleagues involving a hospital physician and how a patient’s right to appropriate language services is violated and the resulting delivery of unethical care. 

Where Can Telehealth Providers Find an LEP Interpreter?

Resources for finding and hiring interpreters are setting-specific. In the section below, a number of options are outlined. When professionals work in a hospital, clinic, or other federally-funded setting, interpreters are typically available upon request. When professionals work outside a hospital system, an interpreter can often be found in the following ways:

• Professional Interpretation Services. Numerous agencies specialize in providing qualified interpreters for a wide range of industries, including healthcare. They ensure the interpreter’s fluency, cultural understanding, and adherence to confidentiality standards. Depending on the need, these services can often arrange for interpreters to be available in person, over the phone, or via video conference.
• Online Platforms. Several online platforms, such as LanguageLine, CyraCom, or Stratus Video, offer interpretation services with interpreters trained specifically for healthcare situations. They offer on-demand services and can be accessed via a smartphone, tablet, or computer.
• Professional Associations. Associations like the National Council on Interpreting in Healthcare (NCIHC), International Medical Interpreters Association (IMIA), and American Translators Association (ATA) have directories of certified medical interpreters that can be hired.
• Local Community Resources. Local universities, community colleges, or community centers often have language departments or connections with language professionals. They may be able to refer the provider to interpreters who can assist in healthcare settings.

In all scenarios, practitioners need to ensure that the chosen interpreter has the necessary qualifications, including fluency in both languages, understanding of behavioral and relevant medical terminology and protocols, and strict adherence to confidentiality. Having them sign a HIPAA Business Associate Agreement is essential. They also need to feel comfortable with the technology used for telehealth and how they work out their cues with the therapist to avoid leading the session in the wrong direction. Once an appropriate interpreter is found and trained, an introductory session can be held to establish protocols and expectations.

Choice of Interpreters

These points may be worth considering when hiring an interpreter for medical or behavioral services:

• Telehealth practitioners are advised to avoid involving family members as interpreters, especially children or ex-spouses. Complications can quickly arise and be quite detrimental to the therapeutic effort. 
• The best choice for an interpreter is one who has undergone specific training to be offered medical or healthcare interpretive services. They will have learned to work within the following guidelines:
  • Adhering to confidentiality requirements.
  • Protecting the client or patient’s privacy.
  • Maintaining a neutral stance by remaining objective.
  • Following the therapist’s direction.
  • Providing appropriate written documentation for their services. 

Telehealth-Specific Considerations

• The interpreter’s digital literacy is crucial to evaluate. “Practice sessions” using whichever telehealth modality is needed (e.g., video, audio-only) should be planned to determine if, indeed, the interpreter has not only the interpretive skills but the equipment, bandwidth, and know-how to navigate the treatment session by following the therapist’s lead. 
• Healthcare professionals must also rely on their sense of how an interpretation is going. For example, if the clinician consistently offers three or four sentences to explain a concept and the interpreter constantly utters five or six words to explain the concept in a foreign language, questioning the accuracy of the interpretation is appropriate.

Role of Written Telehealth Documentation

• The interpreter’s digital literacy is crucial to evaluate. “Practice sessions” using whichever telehealth modality is needed (e.g., video, audio-only) should be planned to determine if the interpreter has the interpretive skills, equipment, bandwidth, and know-how to navigate the treatment session by following the therapist’s lead. 
• Healthcare professionals must also rely on their sense of how an interpretation is going. For example, if the clinician consistently offers three or four sentences to explain a concept and the interpreter constantly utters five or six words to explain the concept in a foreign language, questioning the accuracy of the interpretation is appropriate.

In addition to documentation from an interpreter, written practice documentation, along with case-note documentation, the above-described activities should include mention of the law and steps taken to comply with baseline federal and relevant state requirements. Consult local, state-based attorneys or other resources for up-to-date and state-specific telehealth and LEP information is always a good idea.

Conclusion

Learning to provide LEP-compliant, healthcare translation services to people who are limited language proficiency is required by federal and many state laws. To read more about the practicalities of working with LEP individuals, see our LEP case study in Part-II of this article.

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