HIPAA/LAW:
Legal Q/A
May 2002
"The Privacy Notice for Non-English Speaking Patients"
by Steve Fox, Esq., & Rachel Wilson, Esq.,
Pepper Hamilton LLP
QUESTION: I understand that the notice of privacy practices
("NPP") required under HIPAA’s Privacy Regulation
(the "Regulation") must be written in plain, easy-to-understand
language. If our hospital serves a number of non-English speaking
populations, will we be required to provide the NPP in a variety
of languages?
ANSWER: It depends. Under HIPAA, covered entities are not
required to provide the NPP in the primary language of each of their
patients. HHS encourages, but does not require, this and other alternative
means of communication. However, there are other applicable laws
that may mandate the availability of NPPs in foreign languages.
According to HHS, one of the primary goals of the Regulation "is
to create an environment of open communication and transparency
with respect to the use and disclosure of protected health information
("PHI")." An NPP provides patients with information
about their rights, as well as the protections utilized by covered
entities with respect to their PHI, and is therefore imperative
to achieving that goal. The Regulation specifies minimum requirements,
not best practices. But if a patient cannot understand the NPP,
the goal of providing better information is undermined along with
any opportunity to inspire confidence in the covered entity’s
commitment to privacy.
As it relates to comprehension of the NPP, the only requirement
under the Regulation is for the NPP to be written in plain language
so that the average reader will be able to understand it. However,
any covered entity that receives federal financial assistance is
likely to have an obligation to make the NPP accessible to patients
that are not proficient in English. Title VI of the Civil Rights
Act of 1964 generally requires participants to take reasonable steps,
considering the scope of services and the size of the non-English
speaking population, to provide certain materials in the primary
languages of those persons with limited proficiency in English.
Even if a covered entity is not subject to Title VI, the Title
VI standards provide helpful guidance for how to effectively communicate
the NPP with non-English speaking population. HHS’ office of
civil rights ("OCR") is responsible for enforcing the
applicable portions of Title VI as well as the Regulation. Referring
to the Title VI standards should help to provide insight on the
kind of efforts likely to be considered reasonable by OCR and meet
with its approval.
Read past HIPAA Legal Q/A articles.
Steve Fox, Esq., is a partner at the Washington, DC office of Pepper
Hamilton LLP. This article was co-authored by Rachel H. Wilson,
Esq., of Pepper Hamilton LLP. www.pepperlaw.com
Disclaimer: This information is general in nature and should not
be relied upon as legal advice.
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