New Policies Strengthen Language Access Protections in Health

New Policies Strengthen Language Access Protections in Health

By Ben D’Avanzo and Gabrielle Lessard  

THE TORCH: CONTENTS
April 30, 2024

The U.S. Department of Health and Human Services (HHS) Office for Civil rights (OCR) has posted its finalized regulation updating Section 1557 of the Affordable Care Act (ACA), also known as the Health Care Rights Law. The final rule strengthens antidiscrimination requirements for recipients of federal health funding and in federal health programs, including prohibiting discrimination on the basis of race, color, sex, age, disability, and national origin. These changes will improve the quality and safety of health care for immigrants, women, LGBTQ+ communities, and individuals with disabilities. In particular, the new regulation strengthens requirements that health entities provide meaningful access to their programs for people with limited English proficiency (LEP).

Covered Entities – The final rule applies to all entities that conduct or administer health-related programs or activities and receive financial assistance from HHS for any part of those activities. It clarifies that the receipt of any type of federal health funds requires compliance, extending Section 1557’s civil rights requirements to health care providers that accept Medicare Part B. The rule further clarifies that all aspects of an entity’s health activities are subject to its provisions if the entity receives federal funds for any part of them. For example, all activities by an issuer that sells plans on health insurance marketplaces like Healthcare.gov are covered, including sales of plans off of the marketplaces. It also prohibits discrimination in telehealth and by subcontractors of federal funds recipients, such as insurance agents and brokers.

Access to Language Services and Qualifications – The original Obama administration Section 1557 regulation required that covered entities make translation and interpretation services by qualified interpreters and translators available to people with limited English proficiency, which remained true under the Trump rule. The new policy adds helpful definitions of qualified interpreter, qualified translator and qualified bilingual/multilingual staff, ensuring that the provision of these services is competent. For example, the rule states that being bilingual alone does not mean an employee is qualified to be an interpreter and that interpreters must be familiar with any specialized vocabulary and terms. It also clarifies that companions are also entitled to these services, such a minor child’s parent with LEP.

Machine Translation – With the proliferation of tools like Google Translate, and the avalanche of artificial intelligence technology, the rule makes clear that machine translation alone is generally insufficient to meet civil rights requirements. Any use of these tools must be reviewed by a qualified human interpreter when the underlying text is critical for meaningful access to an activity or program for people with LEP.

Required Written Procedures – The rule finalizes requirements that covered entities must have written language access policies and procedures, including how employees identify whether someone has LEP and how they can obtain qualified language services. Employees must be trained in these procedures, and covered entities with 15 or more employees must identify a 1557 coordinator on staff.

Civil Rights Notices – Covered entities must take certain steps to inform individuals about their health care civil rights. These include posting public notices of nondiscrimination and including notices of availability of language and disability services in significant documents. All notices about the availability of language assistance must be provided in the top 15 languages in the state or states in which the covered entity operates. For example, the notice of availability must be included on applications for benefits, terminations of eligibility, consent forms, discharge papers, medical bills, and explanations of benefits.

Intersectional Discrimination – The final rule acknowledges that individuals may be discriminated against based on multiple identities, such as being Black and LEP, and that these complaints can be resolved through a single grievance process and with the same enforcement mechanisms. While OCR declined to determine whether discrimination based on immigration status violates the statute, the preamble does contemplate that differential treatment based on suspected immigration status could be a violation.

Compliance Test – The final rule establishes a two-factor standard for OCR to use in assessing whether an entity has complied with the law should it come under investigation, considering the importance of the program and whether the entity has effective written procedures.

Private Right of Action – While HHS declined to specifically adopt regulatory text stating that any individuals may privately litigate any type of discrimination claims under Section 1557, the preamble of the final rule recognizes that courts have consistently found this to be the case.

Effective Date – While the rule will be broadly effective on July 5, 2024, covered entities are given six months to designate 1557 coordinators and a year to develop their policies and procedures. They are also given a year to start including notices of the availability of language assistance in applicable documents. See the table under question 4 of the HHS FAQ for more details.

Implementation
OCR indicates in the preamble of the rule that it may considering issuing additional guidance in the future, such as how to assess whether employees meet the requirements to be bilingual, clearer definitions of what it looks like to provide “meaningful access” to people with LEP, and standards for using machine translations. It also states that the final rule does not apply to health activities by other agencies, leaving a gap that may be filled by action by agencies that implicate health care like the Social Security Administration, Internal Revenue Service, and Veterans Administration.

We will now look to the administration for a robust implementation of these important new requirements. There will be consequences for health equity if individuals are unaware of their rights or if health care entities fail to comply with them. No one should face barriers to accessing health care because of their language and every person should understand their right to language access.