This post is part of a continuing series on the new Affordable Care Act Section 1557 regulations that went into effect in July, 2016.
Video Remote Interpreting (VRI) continues to be an important resource for providing language access to people who speak little or no English or who are deaf or hard of hearing. VRI’s important place at the table will grow as technological advancements further enhance VRI performance and capabilities.
The new Section 1557 health care civil rights regulations address VRI usage, especially in the spoken language context.
Section 1557 Requirements for Video Remote Interpreting (VRI)
Before the new rules, the only federal regulations for using VRI to provide language assistance came under the Americans with Disabilities Act – 28 Code of Federal Regulations § 35.160(d).
These VRI regulations provide mainly technical requirements for VRI usage, such as “A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position [and]… clear, audible transmission of voices.” The regulations also require “adequate training” to ensure that VRI users know how to operate the technology properly.
Section 1557 makes clear the intent of the US Department of Health and Human Services (HHS) that VRI rules are essentially the same, whether the person being assisted is Deaf or Limited English Proficient. As HHS notes in comments on the new regulations:
“We intend that ‘video remote interpreting services’ used for oral interpretation for individuals with limited English proficiency means the same that it does when used to provide interpretation for individuals with disabilities as defined by reference in § 92.4 [defining ‘auxiliary aids and services’ to include ‘video remote interpreting services,’ as defined in Title II of the ADA, 28 CFR 35.104] of this final rule: ‘an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in [28 CFR] 35.160(d).’”
Sign Language Requirements vs. Spoken Language Requirements
However, unlike the requirements for using VRI to communicate with a Deaf or hard of hearing person that the VRI is large enough to display face, arms, hands, and fingers, the new rules do not regulate the size of the spoken language video images in the same way. Instead, the new rules for VRI spoken language assistance usage require only that the VRI image is large enough to display the faces of the spoken language interpreter and the participating individual. There are no regulatory requirements that the image also show the arms, hands, and fingers of the participants, unlike the rules for VRI sign language interpretation.
HHS made this distinction recognizing that “the size of the video image… is less relevant for oral interpretation between English and non-English [spoken] languages,” according to HHS.
I may disagree with this HHS distinction between spoken and sign language. However, HHS’s regulatory decision raises a significant practical, legal concern.
For example, if a hospital uses small screen VRIs to provide spoken language assistance, these units may not be large enough to comply with the Americans with Disabilities Act and Section 1557 requirements for VRI screen size to display “face, arms, hands, and fingers” of individuals participating in VRI Sign Language interpretation.
Section 1557 continues to reveal lots of twists and turns. Keep in mind that in addition to Section 1557, there are many other sources of federal civil rights law for health care. Myriad federal court decisions and U.S. Department of Justice Guidance documents regulate and proscribe the legal use of VRI. Remember that legal requirements and legal compliance come from many different sources, not just one website or even one 100 page Federal Register publication.
Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.