In Lau et al v. Nichols et al, 414 U.S. 563 (1974), a case involving discrimination against Limited English Proficiency (LEP) individuals related to national origin, the U.S. Supreme Court held that the “provision of language assistance services is essential to ensure the equality of opportunity promised by nondiscrimination laws.”1 In the Lau case, the San Francisco school system had failed to provide supplemental English language instruction to a number of Chinese-American students.
The drafters of the Patient Protection and Affordable Care Act, also called the Affordable Care Act or, unofficially, Obamacare, took this decision into consideration. Section 1557 of the Act prohibits discrimination on the basis of race, colour, national origin, sex, age or disability. Section 1557 on Nondiscrimination, paragraph 92.20, covers “Meaningful Access for Individuals With Limited English Proficiency” in the rules for the implementation of the Affordable Care Act. To improve access to care and avoid discrimination, the Act provides that American health care institutions offer interpretation services to LEP individuals so they can understand and consent to treatment and services.
The U.S. Health and Human Services Department anticipated the possibility that hospital administrators might use machine translation in the rules for the implementation of the Affordable Care Act. The implementation rules drafted after a broad consultation process state that machine translation is acceptable only if the translation is reviewed and edited as needed by a qualified translator. It may have been the first legislation to refer to machine translation and its implications. The rule proposed is discussed in the Federal Register, also known as the Daily Journal of the United States Government, which reads as follow:
We do, however, agree with commenters’ concerns regarding the use of some automatic translation technologies, which “is particularly dangerous, and can lead to very serious misunderstandings and adverse consequences for medical documents.” For example, machine translation programs translate text by performing simple substitution of words using statistical techniques, which may produce highly unreliable translations for certain languages and written content.As a result, using automated translation as the only tool for translating written documents would fulfill a covered entity's obligation under § 92.201(a) only if a qualified translator reviewed the translation for accuracy and edited it as needed.OCR encourages covered entities to understand the strengths and weaknesses of the technology and software programs that qualified translators use.2
N.B. In the above citation, “a covered entity” means an entity receiving grants, health care providers, hospitals, physicians under the U.S. Health Insurance Portability and Accountability Act and “OCR” is the Office for Civil Rights.
The following is an extract from the Federal Regulations for Translation and Interpreting in Medical Settings.
(c) Language assistance services requirements. Language assistance services required under paragraph (a) of this section must be provided free of charge, be accurate and timely, and protect the privacy and independence of the individual with limited English proficiency.
(d) Specific requirements for interpreter and translation services. Subject to paragraph (a) of this section:
(1) A covered entity shall offer a qualified interpreter to an individual with limited English proficiency when oral interpretation is a reasonable step to provide meaningful access for that individual with limited English proficiency; and
(2) A covered entity shall use a qualified translator when translating written content in paper or electronic form.
(e) Restricted use of certain persons to interpret or facilitate communication. A covered entity shall not:
(1) Require an individual with limited English proficiency to provide his or her own interpreter.3
All that said, it is very likely that the Affordable Care Act will be replaced in the short term. Moreover, there have been challenges to the Lau decision (Alexander v. Sandoval 532 U.S. 275 ). Regardless of these developments, it will be interesting to see how the protection of language rights is handled in the United States in the future.
This article solely reflects the views of its author.