The recipient facility is required
to develop and implement a plan to deliver services
to LEP based on the results of the analyses. Under
the first factor, the greater the number or proportion
of LEP persons served by the programs, the more
likely the language services will be needed. The
second factor requires that the more frequent the
contact with a particular language group, the more
likely that enhanced language services in that language
are needed. The third factor concerns the importance
and urgency of the program to the LEP individual.
Emergency department services are so important and
urgent that a denial or delay of access could have
serious or even life-threatening implications. However,
in the case of outpatient services or elective surgery,
language services may be delayed for a reasonable
period without adverse effects on the individual.
The fourth factor is consideration
of the recipient’s level of resources and the
costs of complying with the law. Reasonable steps
may cease to be "reasonable" when the
cost imposed substantially exceeds the benefits
obtained. For smaller businesses, staff training,
telephonic and video conferencing and use of centralized
interpreting and translation services to achieve
economies of scale may be necessary.
An interpreter need not be certified,
but must demonstrate proficiency and the ability
to communicate information accurately in both English
and in the other language. An interpreter must follow
confidentiality and impartiality rules, and use
caution to remain in the role of an interpreter
only, without deviating into other roles such as
counselor or legal advisor. Where individual rights
depend on precise, complete, and accurate interpretation,
the use of certified interpreters is strongly encouraged.
Family members or friends can act as interpreters
but a recipient may not require an LEP person to
use a family member or friend as an interpreter.
Furthermore, family members may not be competent
to provide accurate interpretations. Issues of confidentiality,
privacy or conflict of interest may also arise.
For example, if a woman or child is brought to an
emergency department with injuries consistent with
abuse or neglect, the use of a spouse or a parent
to interpret may be inappropriate.
Recipients must also provide a translation
service, which is written text from one language
into an equivalent written text in another language
of vital information. Examples of vital written
materials that should be translated for the LEP
are consent and complaint forms, in-take forms with
the potential for important consequences, written
notices of eligibility criteria concerning the denial,
loss or decreases in benefits or services, and notices
advising LEP persons of free language assistance.
The law provides "safe harbor"
provisions. If a recipient takes certain affirmative
actions toward translating vital documents, such
actions will be considered strong evidence of compliance
with the recipient’s written translation obligations.
The safe harbor provisions provide (a) a recipient
should provide written translations of vital documents
for each eligible LEP language group that constitutes
5% or 1000 (whichever is less) of the population
of LEP persons served or likely to be affected or
encountered; or (b) if there are fewer than 50 persons
in a language group that reaches the 5% trigger
in (a), the recipient does not have to translate
the written materials but must provide written notice
in the primary language of the LEP language group
of the right to receive competent oral interpretation
of those written materials, free of cost.
To assist recipients in identifying
the language that needs to be communicated, language
identification cards, or "I Speak Cards"
are particularly helpful. For example, an "I
Speak Card" might say "I Speak Spanish"
in both Spanish and English. To reduce the costs
of compliance, the Federal government has made a
set of these cards available on the Internet. The
Census Bureau "I Speak" website can be
found at: http://www.esdaj.gov/crt/cor/13166.htm.
In addition to helping employees identify the language
of LEP persons they encounter, this process will
help in future applications of the first two factors
of the four-factor analysis, by identifying the
number of LEP persons to be served and the frequency
with which LEP individuals come in contact with
the recipient’s program. More detailed information
is available on the LEP website, www.lep.gov.
Martin Khoury, Esq. is a
former ARRT Registered CT Technologist. He is available
to speak to your group on a variety of medical and
legal topics. Contact him by E-Mail
at mkhoury@qpwblaw.com.
This column is meant for informational purposes
only and should not be relied upon as legal advice.
