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January 27, 2017

OCR's Enforcement of Requirements for Those with Limited English Proficiency or in Need of Auxiliary Aids

As we await the impact of the change in administration, the United States Department of Health and Human Services’ Office for Civil Rights (OCR) has flexed its muscle, enforcing non-discrimination provisions against a social services agency and a hospital.  Entities that receive federal financial assistance from the Department of Health and Human Services (such as most Medicare and Medicaid dollars) or is covered under Title II of the Americans with Disabilities Act as a program, service, or regulatory activity relating to the provision of health care or social services are subject to strict non-discrimination requirements.  These requirements are sometimes considered burdensome by providers.

Much can be gleaned by the Department of Health and Human Services’ own non-discrimination notice, where it promises to comply “with applicable Federal civil rights laws and . . . not discriminate on the basis of race, color, national origin, age, disability, or sex.”  It goes on to promise “free aids and services to people with disabilities to communicate effectively with us, such as: qualified sign language interpreters; written information in other formats (large print, audio, accessible electronic formats, other formats); free language services to people whose primary language is not English, such as qualified interpreters and information written in other languages.”

OCR recently entered into a Voluntary Resolution Agreement with a county Department of Social Services (DSS) to ensure that appropriate language assistance services are provided to individuals with limited English proficiency (LEP) served by the DSS agency.

The complaint was filed on behalf of five individuals and an investigation ensued.  The DSS entered into the voluntary agreement, which included a number of compliance requirements, including:

  • Assigning a Title VI coordinator;
  • Conducting and completing an assessment of the linguistic needs of the affected population served by the DSS;
  • Identifying and translating all vital documents provided by the DSS;
  • Developing and implementing a language access plan with written policies and procedures on providing assistance to individuals with LEP;
  • Developing and implementing mandatory training for all staff;
  • Adopting a grievance procedure;
  • Posting a Notice of Nondiscrimination;
  • Posting a Nondiscrimination Statement; and,
  • Posting taglines in at least 10 languages.

OCR also took action against a hospital regarding the availability of auxiliary aids and services to ensure effective communication with individuals who are deaf or hard of hearing.  In that case, the resolution agreement followed a complaint alleging that the hospital failed to provide timely auxiliary aids and services to effectively communicate in the hospital’s emergency department.  According to the complaint, despite requesting services upon arrival, the complainant was not provided with an interpreter or video remote interpreting services, and was forced to rely on a companion to interpret during the hospital visit.  The hospital was required to:

  • Assign a Civil Rights Coordinator;
  • Revise its policies and procedures;
  • Incorporate a general assessment evaluation into the patient intake process;
  • Track all requests for auxiliary aids and services;
  • Monitor performance of interpreter services to ensure effective communication;
  • Adopt a grievance procedure;
  • Post a Notice of Nondiscrimination;
  • Post a Nondiscrimination Statement; and
  • Conduct mandatory training for all staff.

The hospital also agreed to pay $20,000.00 in compensatory relief for the complainant.

It is important that providers review OCR’s regulations and interpretations when implementing the language access and auxiliary aid requirements.  The costs to respond to a complaint and the oftentimes lengthy investigation, along with any required corrective action, are far more expensive than initial compliance efforts.  Should you require more information, please contact any member of the Health Care & Human Services Practice Area.


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