On November 15, 2023, the US Department of Health and Human Services (HHS) released its updated Language Access Plan (Updated Plan) to further ensure that the limited English proficiency (LEP) community and individuals with disabilities can meaningfully access HHS-administered and -funded programs and activities. The Updated Plan establishes practical guidance, best practices and action steps for HHS agencies to develop their own agency-specific access plans.

IN DEPTH

Appropriate communication is integral to ensuring that individuals can access healthcare and human services programs to which they are entitled. However, nearly 10% of the US population over age five has limited English proficiency (LEP), and many of these individuals are unaware of governmental assistance programs or how to access them. Data coming out of the COVID-19 pandemic has shown that inequitable access to programs and services offered by HHS exacerbated already disproportionate negative health outcomes. Recognizing this inequity and appreciating its obligation to avoid discrimination on the basis of (among other things) race, color, national origin and disability under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act (Section 1557) as well as various executive orders, HHS issued its Updated Plan on November 15, 2023.

The Updated Plan aims to ensure HHS and HHS agencies continue to provide access for individuals with disabilities and LEP to programs and activities administered and funded by HHS. The Updated Plan revises direction promulgated by HHS in 2013 and sets forth practical guidance, best practices and action steps for HHS agencies to develop agency-specific language access plans, outlining 10 essential elements that each HHS agency’s language access plan should address. Each element identifies specific steps and timelines that HHS agencies must follow in implementing HHS’s language access policy at the agency level.

HHS AGENCIES COVERED UNDER THE UPDATED PLAN

The Updated Plan applies to all agencies across HHS, including the Centers for Medicare and Medicaid Services, the Food and Drug Administration, the Health Resources and Services Administration, the Indian Health Service, the National Institutes of Health, and the Office for Civil Rights.

SPECIFIC COMPONENTS OF THE UPDATED PLAN

Under the Updated Plan, HHS describes 10 essential elements necessary to improve access to programs and activities funded by HHS or administered by HHS agencies for persons with LEP. Many of the recommendations strive to address service weaknesses, changes in technology, and priorities of the Biden administration coming out of the COVID-19 pandemic. For example, the Updated Plan includes steps to provide: (1) webpages in languages other than English, (2) telephonic and video or virtual interpreting services, (3) program and benefit information in languages other than English and (4) federal funding for language assistance services.

The 10 essential elements outlined in the Updated Plan and the material policies and action steps associated with each element are highlighted and summarized as follows:

Element 1: Assessment: Needs and Capacity

• Every March, assess the language assistance needs of the agency’s current and potential customers to inform policy, processes and budgeting necessary to increase awareness of and implement language assistance services that increase access to the agency’s programs, activities and services for persons with LEP.
• Consider the needs of non-English speakers, including those communicating with sign language, as part of the assessment.
• Determine the resources necessary to identify those who need language assistance and barriers that impact individuals with LEP from experiencing effective interpretation and written communication.
• Include in HHS agencies’ action plans mechanisms for hiring qualified multilingual staff, ensuring the availability of independent contractor translators and interpreters, and developing or amending policies to ensure language assistance services are appropriate for the applicable agency’s customers.

Element 2: Interpretation Language Assistance Services

• Provide, free of charge, appropriate interpretation language assistance services (g., face-to-face, virtual and/or telephone encounters) through qualified bilingual and multilingual staff, and through qualified interpreters.
• Provide appropriate auxiliary aids and services, such as qualified sign language interpreters, on-site or through video remote interpreting services to people with disabilities.
• Designate an office or official responsible for establishing agency-wide procedures for providing interpreting services within 180 days of issuance of the Updated Plan.
• Establish over-the-phone and video remote interpreting help lines that will quickly connect callers who speak the 15 most commonly spoken languages in the relevant state(s) to telephonic or video interpreters.

Element 3: Written Translations

• Provide accurate written translations to ensure meaningful access to and an equal opportunity to receive timely public health and social services information and participate fully in the services, activities, programs or other benefits administered by the agency.
• Develop translated documents using plain language, cultural communication and health literacy, as appropriate, to make the materials more easily understandable.
• Refrain from using machine translation or other artificial intelligence applications to convert written text from one language to another without the involvement of a qualified human translator.
• Ensure vital documents are provided in the preferred languages for the LEP communities served, and produce materials in other languages when requested or otherwise appropriate.
• Offer translated written materials, particularly vital documents, in non-written formats, including audio, video with subtitles, video with sign language, and infographics, for persons with limited literacy or disabilities, and for those whose language does not have a written form.
• Provide customers with a notice of nondiscrimination and availability of free language assistance and appropriate auxiliary services, consistent with requirements under Section 1557 of the ACA.

Element 4: Policies, Procedures, and Practices

• Establish and maintain an infrastructure designed to implement and improve language assistance services within the agency.
• Collect and share metrics to monitor implementation and efficacy of agency plans.
• Ensure policies, procedures and all language assistance activities are developed and implemented in alignment with the National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care.
• Develop policies and procedures for receiving and addressing language assistance concerns or complaints from customers with LEP and customers with disabilities who require auxiliary aids or services for effective communication.

Element 5: Notification of the Availability of Language Assistance at No Cost

• Distribute resources such as HHS LEP guidance directly and online to all current recipients, providers, contractors and vendors.
• Use various methods and networks, including public service announcements, non-English media, and community- and faith-based resources, to ensure that LEP communities are informed that language assistance is available from the agency.
• Develop and prominently display appropriate language taglines on vital documents, web pages currently available only in English or in a limited number of non-English languages, technical assistance and outreach materials, and other documents notifying the availability of language assistance at no cost.
• Use the assessment from Element 1 as guidance regarding the languages in which notifications and vital documents should be translated.

Element 6: Staff Training

• Establish a process that ensures overall employee awareness of the agency’s language assistance plan.
• Create a dedicated internal resource webpage that can serve as a repository of standard operating procedures, guidance documents, training opportunities and other materials necessary to support staff capacity, capability and competence.

Element 7: Assessment and Accountability: Access, Quality, Resources, Reporting

• Implement an agency process to annually report to HHS’s Language Access Steering Committee on agency progress implementing each element of the Updated Plan.
• Implement methods for measuring improvements in language access in individual programs and activities and for ensuring that such information is collected in a manner that increases comparability, accuracy and consistency across different agencies’ programs and activities.
• Address complaints received regarding language assistance services and products, or other services provided by the agency, in a timely manner, retaining a record of any resolution of such complaints, and making resolutions and agreements available to public.

Element 8: Consultation with Health Care and Human Services Partners

• Plan and coordinate conversations with healthcare and human services partners, including agency program beneficiaries, to assess the accessibility, accuracy, cultural appropriateness and overall quality of the agency’s language assistance services.
• Share language access plans and resources with healthcare and human services partners, solicit feedback and incorporate stakeholder input into language access plans.
• Host at least one annual listening session (e.g., town hall, conference call) to learn about challenges and opportunities for improvement in the agency’s language access program.
• Post agency language access plans and resources on agency websites in accessible formats and in multiple languages, along with a way for stakeholders to provide questions and comments, and share relevant data and information pertaining to language access with healthcare and human services partners.

Element 9: Digital Information

• Ensure digital information is appropriate, available and accessible to people with LEP in languages other than English.
• Prominently display links and/or symbols at the top-right corner of the agency’s English-language website redirecting users to pages and documents that are also available for viewing or downloading in languages other than English, including sign language.
• Display links on the agency’s English-language homepage redirecting users to effective, multilingual telephonic interpreter services.
• Ensure that any virtual meeting platform being used provides for closed captioning and that the captioning function is enabled by the host.
• Leverage social media, email dissemination and/or text message services to increase awareness and utilization of HHS agency programs, activities, language assistance services and products available in non-English languages by individuals with LEP and people with disabilities.
• Evaluate practicability of using real-time translation services to ensure better accuracy of captions.
• Ensure that virtual meeting participants are able to highlight another participant’s screen and keep focus on that screen so that sign language users can focus on a sign language interpreter.
• In meeting invitations, provide an option for virtual attendees to request auxiliary aids and services or reasonable modifications to facilitate participation by individuals with disabilities.

Element 10: Grant Assurance and Compliance by Recipients of HHS Funding

• Develop and incorporate LEP requirements or best practices in funding opportunity announcements (e.g., requiring HHS grant applicants to submit language access procedures or policies with their applications).
• Ensure civil rights compliance language and guidance is included in each grant-making agency’s program outreach materials to the extent feasible, including ensuring compliance by the recipient’s program staff, sub-recipients and contractors.

TIMELINE FOR DEVELOPING AND IMPLEMENTING AGENCY-SPECIFIC LANGUAGE ACCESS PLANS

Within six months of the issuance of the Updated Plan, HHS agencies must develop and implement agency-specific language access plans and policies that incorporate and identify action steps to implement all 10 elements of the Updated Plan. HHS agencies must also obtain input from the healthcare and human services partners.

While the Updated Plan is primarily intended to promote meaningful access to HHS agencies’ programs and activities for individuals with LEP, HHS has noted that many aspects of the Updated Plan also will help ensure that HHS agencies are communicating effectively with persons with disabilities, including persons who rely on sign language to communicate in compliance with Section 504 of the Rehabilitation Act of 1973. As covered entities prepare for release of the Section 1557 final rule, the Updated Plan likely serves as a foreshadowing of what is to come and provides guideposts on how parties can implement compliance plans.

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