The intent of the "plain language" clause pushes us to implement procedures to "educate" our patients about how we use and disclose their information, and consequently, we encourage our clients (covered entities) to view "reading level" as only one aspect. (BTW, this clause is applied to the "authorizations", as well.)
On Page 53241 of the Preamble to the (revised) Privacy rules HHS notes "the Department continues to believe strongly that promoting individuals' understanding of privacy practices is an essential component of providing notice to individuals." Further, on Page 53219 HHS notes that the HIPAA documents must be "written in plain language so individuals can read and understand its contents". And still, in its recent guidance-report, OCR says that a CE must "maximize readability and clarity" of the HIPAA documents. The concepts of "readability" and "understanding" are not new and pervade many (other) Federal and State laws and accreditor standards that regulate health care. In NY the NYS DOH has issued a consumer advisory that states, "Translations and/or transcriptions of important hospital forms, instructions and information must be provided to you if you feel you need them", and the NYS State auditors enforce the regulations and intents. Consequently, in NYC we must provide some of our (clients') hospitals and ambulatory centers in Brooklyn with translations in Russian, translations in Chinese in Manhattan, and translations in Spanish are distributed throughout the five Burroughs; translations in Hindi will be needed in Queens. In addition to NY, a number of States have health or mental health laws that mandate "patient rights" activities in hospitals, nursing homes, and similar residences or institutions. And these laws usually contain the "language understandable" clauses regarding how we must provide information to the patient. One of the clearest examples of this language is Iowa State law (Chapter 28) for all institutions --28.4(229) Patients� rights for the mentally ill: "In order to preserve the patients� self-respect and dignity......The patient shall be provided with complete and current information concerning patient diagnosis, treatment and progress in terms and language understandable to the patient." The JCAHO, too, is definitely NOT silent on this matter. Its "Rights of Individuals" standards include a statement that the "Individuals served have a right to effective communication......Written information provided is appropriate to the age, understanding, and language of the individual served [and] The organization provides for interpretation (including translation services) as necessary." As a practical matter, we believe, and advise our clients accordingly, that for most hospitals it will be the JCAHO or other Accreditor, NOT OCR, that will provide the initial findings of how well the HIPAA rules have been met by the hospital. I hope that this helps. Your questions are always welcome. Matt Matthew Rosenblum Chief Operations Officer Privacy, Quality Management & Regulatory Affairs CPI Directions, Inc. 10 West 15th Street, Suite 1922 New York, NY 10011 (212) 675-6367 [EMAIL PROTECTED] CONFIDENTIALITY NOTICE: This E-Mail is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you have received this communication in error, please do not distribute it. Please notify the sender by E-Mail at the address shown and delete the original message. Thank you. AVISO DEL CONFIDENCIALIDAD: Este email es solamente para el uso del individuo o la entidad a la cual se dirige y puede contener informaci�n privilegiada, confidencial y exenta de acceso bajo la ley aplicable. Si usted ha recibido esta comunicaci�n por error, por favor no lo distribuya. Favor notificar al remitente del E-Mail a la direcci�n mostrada y elimine el mensaje original. Gracias. -----Original Message----- From: Charles H. Thulin [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 18, 2003 8:10 PM To: WEDI SNIP Privacy Workgroup List Subject: RE: NPP in Other Languages John, I don't agree that the "plain language" requirement of the privacy regulations requires translation of the NPP into other languages. In its discussion of the "plain language" requirement in the preamble to the final privacy regulations DHHS notes that Title VI of the Civil Rights Act -- a separate statute -- generally requires entities that receive Federal financial assistance "to provide material ordinarily distributed to the public in the primary languages of persons with limited English proficiency in the recipients' service areas," 65 Fed.Reg. 82461, 82549 (December 28, 2000), thereby creating an obligation in some cases -- for entities that are subject to Title VI -- to provide the HIPAA notice in non-English languages. Employer group health plans, for example, aren't subject to Title VI (they don't receive Federal funds), and thus aren't required by Title VI to provided notices in non-English languages. DHHS suggests in the preamble that "the Title VI standards provide helpful guidance [to covered entities that are not subject to Title IV] for effectively communicating the content of their notices to non-English speaking populations." 65 Fed.Reg. 82461, 82549 (December 28, 2000). That's no mandate for employer group health plans (or any other covered entity that's not subject to Title VI) to translate NPPs into non-English languages. I think the OCR advice you refer to may be its Policy Guidance on the Prohibition Against National Origin Discrimination as it Affects Persons with Limited English Proficiency, 65 Fed. Reg. 52762, 53768 (August 30, 2000), http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&; docid=00-22140-filed, which creates a compliance safe harbor when an entity covered by Title VI translates "vital documents" for groups of limited-English proficiency individuals who are at least 5% of the population of eligible individuals to be served. Regarding Mr. Ermer's comment concerning SPD's, the regulation he cites does not require "translat[ion of] such plan documents into another language." It merely requires that English-language summary plan descriptions in certain instances provide a notice in a non-English language that assistance available from the plan administrator. See also Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1485 (9th Cir. 1995)("in no instance has the Secretary [of Labor], after having given full consideration to the problems of workforces that are not English-language-literate, imposed any requirement that the operative document itself - either any summary plan description . . . or any summary annual report . . . or any denial of benefits such as those involved in this case . . . - must be furnished to employees in their native tongues.") There is no analogy to ERISA that supports translation of the NPP into non-English lanaguages. Charles H. Thulin Ekman, Bohrer & Thulin, P.S. 220 West Mercer Street, Suite 400 Seattle, WA 98119 (206) 282-8221 -----Original Message----- From: Christiansen, John (SEA) [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 18, 2003 2:43 PM To: WEDI SNIP Privacy Workgroup List Subject: RE: NPP in Other Languages Folks - The "plain language" requirement for the NPP incorporates regulatory requirements that include translation into other languages if they are a material element of the population you serve. I did the research well over a year ago so don't recall the citations, and don't have time to dig it up just now, but I believe it was available via an OCR webpage. There are criteria for determining what languages you need to include, and this would apply to any CE, not just an employer plan. John R. Christiansen Preston | Gates | Ellis LLP 925 Fourth Avenue, Suite 2900 Seattle, Washington 98104 *Direct: 206.370.8118 *Cell: 206.683.9125 * [EMAIL PROTECTED] Notice: Internet e-mail is inherently insecure. Unencrypted e-mail may be accessible to unauthorized viewers, content may be modified or corrupted, and headers or signatures may incorrectly identify the sender. If you wish to confirm this message or the identity of the sender, please contact me using a communications channel other than a "reply" to this e-mail. Secure electronic messaging is available and recommended for confidential or sensitive communications. -----Original Message----- From: David Ermer [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 18, 2003 1:53 PM To: WEDI SNIP Privacy Workgroup List Subject: Re: NPP in Other Languages It strikes me as an attorney who represents ERISA governed health plans that the NPP can be considered a material modification to the health plan under the U.S. Labor Department's (DOL) rules. DOL, in contrast to HHS, has very specific rules on distributing a summary plan description or a summary of material modifications to a plan participant, i.e., hand delivery, first class mail (second or third class only if return and forwarding postage is guaranteed and address correction is requested), or electronic delivery under certain circumstances and on when you need to translate such plan documents into another language. If your covered entity is governed by ERISA, I suggest that you apply these rules. If you covered entity is not governed by ERISA, you still may find the guidance helpful. I have quoted the foreign language and mailing guidance below. Best regards, Dave Ermer 29 C.F.R. �2520.102-2 Style and Format of SPD: (c) Foreign languages. In the case of either-- (1) A plan that covers fewer than 100 participants at the beginning of a plan year, and in which 25 percent or more of all plan participants are literate only in the same non-English language, or (2) A plan which covers 100 or more participants at the beginning of the plan year, and in which the lesser of (i) 500 or more participants, or (ii) 10% or more of all plan participants are literate only in the same non-English language, so that a summary plan description in English would fail to inform these participants adequately of their rights and obligations under the plan, the plan administrator for such plan shall provide these participants with an English-language summary plan description which prominently displays a notice, in the non-English language common to these participants, offering them assistance. The assistance provided need not involve written materials, but shall be given in the non-English language common to these participants and shall be calculated to provide them with a reasonable opportunity to become informed as to their rights and obligations under the plan. The notice offering assistance contained in the summary plan description shall clearly set forth in the non-English language common to such participants offering them assistance. The assistance provided need not involve written materials, but shall be given in the non-English language common to these participants and shall be calculated to provide them with a reasonable opportunity to become informed as to their rights and obligations under the plan. The notice offering assistance contained in the summary plan description shall clearly set forth in the non- English language common to such participants the procedures they must follow in order to obtain such assistance. Example. Employer A maintains a pension plan which covers 1000 participants. At the beginning of a plan year five hundred of Employer A's covered employees are literate only in Spanish, 101 are literate only in Vietnamese, and the remaining 399 are literate in English. Each of the 1000 employees receives a summary plan description in English, containing an assistance notice in both Spanish and Vietnamese stating the following: ``This booklet contains a summary in English of your plan rights and benefits under Employer A Pension Plan. If you have difficulty understanding any part of this booklet, contact Mr. John Doe, the plan administrator, at his office in Room 123, 456 Main St., Anywhere City, State 20001. Office hours are from 8:30 A.M. to 5:00 P.M. Monday through Friday. You may also call the plan administrator's office at (202) 555- 2345 for assistance.'' 29 C.F.R �2520.104b-1 Disclosure (a) General disclosure requirements. The administrator of an employee benefit plan covered by part 1 of title I of the Act must disclose certain material, including reports, statements and documents, to participants and beneficiaries. Disclosure under part 1 takes three forms. First, the plan administrator must, by direct operation of law, furnish certain material to all participants covered under the plan and beneficiaries receiving benefits under the plan (other than beneficiaries under a welfare plan) at stated times or if certain events occur. Second, the plan administrator must furnish certain material to individual participants and beneficiaries upon their request. Third, the plan administrator must make certain material available to participants and beneficiaries for inspection at reasonable times and places. (b) Fulfilling the disclosure obligation. (1) Where certain material, including reports, statements and documents, is required under part 1 of the Act and this part to be furnished either by direct operation of law or on individual request, the plan administrator shall use measures reasonably calculated to ensure actual receipt of the material by plan participants and beneficiaries. Material which is required to be furnished to all participants covered under the plan and beneficiaries receiving benefits under the plan (other than beneficiaries under a welfare plan) must be sent by a method or methods of delivery likely to result in full distribution. For example, in-hand delivery to an employee at his or her worksite is acceptable. However, in no case is it acceptable merely to place copies of the material in a location frequented by participants. It is also acceptable to furnish such material as a special insert in a periodical distributed to employees such as a union newspaper or a company publication if the distribution list for the periodical is comprehensive and up-to-date and a prominent notice on the front page of the periodical advises readers that the issue contains an insert with important information about rights under the plan and the Act which should be read and retained for future reference. If some participants and beneficiaries are not on the mailing list, a periodical must be used in conjunction with other methods of distribution such that the methods taken together are reasonably calculated to ensure actual receipt. Material distributed through the mail may be sent by first, second, or third-class mail. However, distribution by second or third-class mail is acceptable only if return and forwarding postage is guaranteed and address correction is requested. Any material sent by second or third-class mail which is returned with an address correction shall be sent again by first-class mail or personally delivered to the participant at his or her worksite. (2) For purposes of section 104(b)(4) of the Act, materials furnished upon written request shall be mailed to an address provided by the requesting participant or beneficiary or personally delivered to the participant or beneficiary. Gordon & Barnett Attorneys at Law 1133 21st St., NW, Suite 450 Washington, DC 20036 202-833-3400 ext 3009 (voice) 202-223-0120 (fax) www.gordon-barnett.com >>> Kathy Findley <[EMAIL PROTECTED]> 03/17/03 02:07PM >>> Hello All! I don't belive it's required according to the regulations, however, what is everyone doing about having a version of the NPP in Spanish or other languages? Kf Kathy Findley Coordinator - Information Services and HIPAA St. Joseph's Hospital Health Center Phone - (315) 448-6111 Beeper - (315) 467-4180 Text Page - [EMAIL PROTECTED] --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. They also are not intended to be used as a forum for personal disagreements or unprofessional communication at any time. You are currently subscribed to wedi-privacy as: [EMAIL PROTECTED] To unsubscribe from this list, go to the Subscribe/Unsubscribe form at http://subscribe.wedi.org or send a blank email to [EMAIL PROTECTED] If you need to unsubscribe but your current email address is not the same as the address subscribed to the list, please use the Subscribe/Unsubscribe form at http://subscribe.wedi.org --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. They also are not intended to be used as a forum for personal disagreements or unprofessional communication at any time. You are currently subscribed to wedi-privacy as: [EMAIL PROTECTED] To unsubscribe from this list, go to the Subscribe/Unsubscribe form at http://subscribe.wedi.org or send a blank email to [EMAIL PROTECTED] If you need to unsubscribe but your current email address is not the same as the address subscribed to the list, please use the Subscribe/Unsubscribe form at http://subscribe.wedi.org --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. They also are not intended to be used as a forum for personal disagreements or unprofessional communication at any time. You are currently subscribed to wedi-privacy as: [EMAIL PROTECTED] To unsubscribe from this list, go to the Subscribe/Unsubscribe form at http://subscribe.wedi.org or send a blank email to [EMAIL PROTECTED] If you need to unsubscribe but your current email address is not the same as the address subscribed to the list, please use the Subscribe/Unsubscribe form at http://subscribe.wedi.org --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. They also are not intended to be used as a forum for personal disagreements or unprofessional communication at any time. You are currently subscribed to wedi-privacy as: [EMAIL PROTECTED] To unsubscribe from this list, go to the Subscribe/Unsubscribe form at http://subscribe.wedi.org or send a blank email to [EMAIL PROTECTED] If you need to unsubscribe but your current email address is not the same as the address subscribed to the list, please use the Subscribe/Unsubscribe form at http://subscribe.wedi.org --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. They also are not intended to be used as a forum for personal disagreements or unprofessional communication at any time. You are currently subscribed to wedi-privacy as: [EMAIL PROTECTED] To unsubscribe from this list, go to the Subscribe/Unsubscribe form at http://subscribe.wedi.org or send a blank email to [EMAIL PROTECTED] If you need to unsubscribe but your current email address is not the same as the address subscribed to the list, please use the Subscribe/Unsubscribe form at http://subscribe.wedi.org
