In May 2019, the U.S. Department of Health and Human Services (HHS) proposed revisions to regulations under Section 1557, the nondiscrimination provision of the Affordable Care Act.
A little over one year later, on June 12, 2020, HHS released their final rule, which repealed several protections regarding language access.
We recently attended a webinar hosted by the National Council on Interpreting in Health Care (NCIHC) with guest presenter Mara Youdelman, JD, LLM. Ms. Youdelman outlined the new regulations to Section 1557 and how these changes affect language access.
We’ve summarized the points from her presentation below along with our takeaways. NCIHC will be posting a recording of the webinar soon, and we’ll link to it once it’s up.
Summary of NCIHC’s webinar on the state of language access under Section 1557
Here’s an overview of the final rule as explained by Ms. Youdelman.
Section 1557 is still in effect
First and foremost, it’s very important to note that Section 1557 is still the law. The law wasn’t repealed, just some of the regulations under the law. This means that, if you’re a covered entity, you cannot discriminate.
Takeaway: Language access is covered under the national origin piece of Section 1557. Covered entities still need to provide meaningful access to language services, free of charge, to those who need it.
Focus on groups, not individuals
In 2016, the rule stated that healthcare organizations must “take reasonable steps to provide meaningful access to each individual with limited English proficiency who is eligible to be served or likely to be encountered.”
The new rule now states covered entities “must take reasonable steps to ensure meaningful access to its programs or activities by LEP individuals.”
Takeaway: While the difference seems subtle, the new rule shifts focus away from the limited English proficient (LEP) individual and more to the LEP population served under the covered entity as a whole.
To determine if a covered entity is compliant with ensuring meaningful access, HHS adopted the following four-fact test:
- The number or proportion of LEP individuals eligible to be served or likely to be encountered;
- The frequency with which LEP individuals are in contact with the entity’s covered program;
- The nature and importance of the entity’s program; and
- The resources available to the entity and costs.
Takeaway: This change again shifts focus away from protections for the individual and toward the compliance of the covered entity.
The new rule eliminates the definition of “qualified” and “above-average familiarity with” from the description of language interpreters and translators.
Takeaway: The final rule states that the word “qualified” appears six times in describing the qualifications of interpreters, translators, and/or staff. It was removed because it’s redundant and “clearly implied by the context.”
While the above definitions no longer apply, the regulation does still outline the minimum requirements interpreters and translators must meet in order to have the necessary qualifications:
- Adheres to generally accepted interpreter ethics principles, including client confidentiality;
- Has demonstrated proficiency in speaking and understanding both spoken English and at least one other spoken language; and
- Is able to interpret/translate effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary, terminology, and phraseology.
Ms. Youdelman also noted that, indirectly, the outlined minimum requirements exclude ad hoc interpreters — such as friends, family members, or minors — because these groups would be hard-pressed to meet the definition.
The 2016 regulations surrounding the use of friends, family members, and minors still stand.
Video remote interpreting (VRI) for LEP individuals
The new rule stripped the visual standards from 2016 regarding VRI and replaced them with audio-based requirements.
The new rule still requires “a clear transmission of voices” and “adequate training to quickly and efficiently set up and operate the remote interpreting service.”
Takeaway: By eliminating the word “video,” HHS effectively stated that audio is sufficient enough for LEP individuals for remote interpreting services.
The removal of “video” does not mean that covered entities cannot still provide VRI services.
It’s important to note that the above changes to VRI only apply to spoken languages. The regulations for effective communication, which include VRI, under Title II of the Americans with Disabilities Act continue to hold for individuals who are deaf or hard of hearing.
Taglines and nondiscrimination notices
Perhaps the largest change from the 2016 regulations, the 2020 rule fully removes both the tagline and nondiscrimination notice requirements.
Takeaway: Covered entities will no longer have to post taglines in their top 15 languages, nor nondiscrimination notices, in their physical locations, their website, or in “significant publications.” This isn’t to say your facility has to stop posting taglines if you find them effective; they are just no longer required under the law.
Citing billions in cost savings, instead of tweaking the regulation to satisfy confusion and complaints — such as clarifying or narrowing the definition of “significant communications” — HHS decided to eliminate the rule altogether.
With no taglines or notices, the onus is once again put on LEP patients to know and advocate for their rights under the law.
Language access plan
While the 2016 rule did not require covered entities to have a language access plan, if an organization did have one, it could be used to show compliance with the law.
The new ruling removes mention of language access plans altogether.
Takeaway: Having a language access plan goes beyond Section 1557. It’s still a smart move to have an up-to-date one in place because it shows a blueprint for how you’re going to stay in compliance regarding language access. It also helps inform your staff and providers of how to access services, what options are available, and best practices in using interpreting and translating services at your organization.
The final rule doesn’t go into effect until August 18, 2020. This is pending any legal challenges that may or may not put part or all of the new rules on hold.
As mentioned, these are just a few of the regulations that were changed, specifically regarding language access. If you’d like to read all the changes in their entirety, you can view the final rule now in the Federal Register.
One more thing: Ms. Youdleman made an excellent point that stuck with us and that might help you reconcile with what just happened. Although these changes have weakened protections for LEP individuals overall, if you’re already following the 2016 rule, you don’t have to change a thing. So please continue providing your LEP patients with the high-quality interpreting services they’ve grown accustomed to. There is nothing in the new regulations that says otherwise.
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