Date Issued: January 18, 2023
Revised: May 17, 2023
- All Certified, Funded or Otherwise Authorized Treatment Programs
- Local Governmental Units (LGUs)
This Local Services Bulletin (LSB) applies to all OASAS certified, funded or otherwise authorized addiction services treatment programs. This LSB does not apply to certified prevention counseling programs or prevention, harm reduction or recovery programs that are not otherwise certified.
The provisions of this LSB are effective immediately. The language access plan required in accordance with this LSB is due by August 1, 2023.
PURPOSE AND OVERVIEW
The purpose of this LSB is to clarify the obligation of OASAS certified, funded or otherwise authorized treatment programs to ensure language access services, which includes both translation and interpretation services, including American Sign Language, for patients seeking or receiving addiction treatment services.
OASAS treatment programs that are certified, funded or otherwise authorized are prohibited from denying services or admission to any patient on the basis of English language proficiency. Providers are obligated to take reasonable steps to ensure meaningful access to the services they offer to individuals with Limited English Proficiency (LEP), including individuals with hearing loss.
All treatment programs certified, funded, or otherwise authorized by OASAS are required to develop and implement a Language Access Plan and identify a Language Access Officer.
Federal Rules Applicable to All Treatment Programs:
Pursuant to Title VI of the Civil Rights Act of 1964 (CRA), and Section 1557 of the Affordable Care Act (ACA), discrimination on the basis of race, color or national origin is explicitly prohibited. National origin includes an individual’s birthplace, ancestry, culture, or language. Healthcare providers, which includes treatment programs certified, funded, or otherwise authorized by OASAS, who receive federal financial assistance, including funding from the Centers for Medicare and Medicaid Services (CMS) for providing Medicaid and/or Medicare funded services, are obligated to make language access services available to the individuals they serve who have Limited English Proficiency.
The Health and Human Services (HHS) Office for Civil Rights (OCR) is tasked with enforcement of the aforementioned Federal Rules and has issued guidance to service providers, which includes factors for consideration in evaluating the provider’s obligation in offering interpretation and translation services. For example, if a program has frequent contact with individuals with LEP, their obligation to offer interpretation and translation of vital documents may be higher than a program with little contact with individuals with LEP.
Provisions of Title VI impact Medicaid and Medicare funding as well as all other forms of federal financial assistance including grants, training, use of equipment, donations of surplus property, and other assistance. Additionally, it covers a provider’s entire program array or activity(s), meaning that all parts of the provider’s operations are covered, not just the part directly receiving federal financial assistance.
State Rules Applicable to All Programs:
Further, Section 19.07(c) of the Mental Hygiene Law, charges the OASAS with ensuring that patients and their families receive high quality and effective care and treatment and that the personal and civil rights of individuals receiving care and treatment are protected.
Part 815 of Title 14 the New York Code of Rules and Regulations (NYCRR), requires that providers of addiction treatment services establish policies and procedures, governing standards, rights and responsibilities to patients, including, but not limited to, efforts to accommodate differences in language and language abilities and ensure effective communication in accordance with applicable laws. Additional provisions include prohibitions against discrimination in admission, which includes, among other characteristics, national origin.
The Division of Human Rights (DHR) is tasked with enforcing provisions of the New York State Human Rights Law (HRL) which mandates state level civil rights protections for various categories of protected classes of persons, similar to the CRA. The HRL prohibits discrimination on the basis of national origin, disability and other protected classes and provides recourse for individuals that experience discrimination in public accommodations, which includes healthcare settings.
State Rules Applicable to State Agencies and State Operated Facilities:
Furthermore, pursuant to Executive Law Section 202-a, the language access law enacted by Governor Hochul in April 2022, each New York State agency that provides direct public services is required to provide translation of their vital documents in the twelve (12) most common non-English languages spoken by individuals in New York with LEP (currently Spanish, Chinese, Russian, Yiddish, Bengali, Korean, Haitian Creole, Italian, Arabic, Polish, French, and Urdu). Each state agency must also provide interpretation services between the agency and an individual served in their primary language. State agencies covered under this law are also required to designate a Language Access Coordinator and develop and submit a language access plan to the Office of Language Access at least every two years. State-operated facilities for purposes of this LSB includes OASAS-operated Addiction Treatment Centers (ATCs) which are accordingly obligated to provide interpretation and translation services for all individuals seeking or receiving their services.
EXPECTATIONS FOR THE PROVISION OF INTERPRETATION AND TRANSLATION SERVICES
OASAS requires every certified, funded or otherwise authorized addiction services treatment program to provide language access services to individuals with LEP or those who experience hearing loss. Programs may seek third party reimbursement for the provision of such services in accordance with applicable rules as outlined below.
OASAS, as a state agency subject to the provisions Executive Law Section 202-a, contracts with two vendors to provide interpretation and/or utilizes bilingual staff, where available and appropriate, to provide interpretation services.
OASAS requires certified, funded or otherwise authorized addiction services treatment programs to make every effort to provide translation of vital documents for individuals with LEP. “Vital document” means any paper or digital document that contains information that is critical for obtaining agency services or benefits or is otherwise required to be completed by law. Documents considered “vital” must be translated into the twelve (12) most common non-English languages spoken by individuals in New York with LEP . The provider must determine which documents will be considered vital and assess the needs of the population to be served in determining when documents should be translated and into which language(s).
OASAS, as a state agency subject to the provisions of Executive Law Section 202-a, has identified all documents determined to be “vital” and has all such documents translated and posted on the agency website.
Providers should be aware that OASAS vital documents include the agency-approved consent form (TRS 61) which has been translated into the twelve languages consistent with Executive Law Section 202-a,and which are posted on the legal page of the agency website.
Reimbursement for Interpretation:
Language assistance services for program participants as well as translation of vital documents are recognized as ordinary and necessary expenses for the operation of the organization and are therefore allowable costs under Consolidated Fiscal Reporting guidelines. Costs incurred by providers in accordance with the provisions of this bulletin are considered program-specific operating costs and should be reported as such. Not-for-profit providers are encouraged to review the Administrative and Fiscal Guidelines for OASAS-Funded Providers Purchasing Guidelines, Section #4, which includes information on accessing State contract rates for administrative services, including interpretation and translation services.
Pursuant to Part 86 of Title 10 of NYCRR, hospitals and related facilities may be reimbursed for language assistance services. Per the Medicaid Update issued by the State Department of Health (SDOH) in October 2012, OASAS providers certified pursuant to Article 32 of the Mental Hygiene Law shall be eligible for reimbursement by Medicaid Fee-For-Service and Medicaid Managed Care Plans (when negotiated in provider agreements) for language interpreter services for Medicaid members with LEP and communication services for individuals who are deaf and/or hard of hearing.
In accordance with the Medicaid Update, patients with LEP are defined as “patients whose primary language is not English and who cannot speak, read, write or understand the English language at a level sufficient to permit such patients to interact effectively with heath care providers and their staff.”
In accordance with the 2012-10 Medicaid Updated issued by the SDOH, medical language interpretation services for Medicaid Members with LEP and/or hearing impairment are reimbursable.
The following requirements must be met for reimbursement:
- The need for interpreter services must be documented in the patient record;
- The interpretation services must be provided by an appropriately licensed or certified third-party interpreter either employed or contracted by the program; and
- The interpretation services must be provided during the outpatient visit, either face-to-face, virtually or by telephone.
It is recommended that the interpreter be recognized by the National Board of Certification for Medical Interpreters (NBCMI) or the Commission for Certified Healthcare Interpreters (CCHI) as they must demonstrate competency and skills in medical interpretation techniques, terminology, and ethics. The Registry of Interpreters for the Deaf, Inc. (RID) and the National Association for the Deaf (NAD) may be referenced for recognized interpreters in American Sign Language (ASL).
Reimbursement is payable using Healthcare Common Procedure Coding System (HCPCS) procedure code T1013 for both sign language and oral interpretation services.
Language Access Officer and Plan:
All OASAS certified, funded or otherwise authorized treatment programs shall designate a member of their staff to serve as the Language Access Officer and create a Language Access Plan. The role of the Language Access Officer may be incorporated into an existing staff role. The Language Access Officer is responsible for leading the development of the program’s Language Access Plan and ensuring program compliance with the Plan. An OASAS Provider may create one Language Access Plan applicable to all programs under their provider umbrella provided the plan adequately addresses the provision of services in each program/level of care appropriately. Development of a Language Access Plan will ensure meaningful and seamless access to services for patients by having policies regarding staff training and the process for providing language access assistance in place prior to the program engaging with a patient/potential patient in need of such services.
Programs should examine the number of individuals with LEP or who experience hearing loss that are served, or could be served in their community, their dedicated resources and the frequency of language access need when determining interpretation and translation service needs. Programs should also be familiar with other OASAS programs that may provide services in other languages and offer linkages for patients, where appropriate. Programs shall not seek to refer each patient with LEP or hearing loss to other programs but should be aware of and offer connection to other available services which may better serve the patient’s particular need, when appropriate.
Programs shall develop a Language Access Plan utilizing or in accordance with the Language Access Plan Template issued by OASAS and available on the agency website.
Medicaid Update, October 2012: https://www.health.ny.gov/health_care/medicaid/program/update/2012/oct12mu.pdf
Language Access Vendors approved by the NYS Office of General Services may be found here: https://online.ogs.ny.gov/purchase/snt/awardnotes/7300323057can.HTM
The National CLAS Standards issued by the U.S. Department of Health and Human Services Office of Minority Health provide a framework to assist providers in advancing health equity and are a valuable resource as providers develop their language access plan. Culturally and Linguistically Appropriate Services - Think Cultural Health (hhs.gov)
Questions on the content of this bulletin should be directed to [email protected].