At CLI, we see non-discrimination laws like Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) of 1990, and Section 1557 of the Affordable Care Act (ACA) as necessary protections to ensure every person has access to the basic services that many people take for granted. Equitable access to high-quality healthcare, in particular, is a human right — regardless of what language you speak or where you come from.
On May 24, 2019, new revisions to Section 1557 of the ACA were proposed, including repeals to certain provisions that provide limited English proficient (LEP) individuals and those with varying communication needs (such as deaf and hard-of-hearing individuals) with free access to auxiliary aids and language services.
In underserved communities, laws like Section 1557 can make all the difference, and we don’t want to see the new revisions create a snowball effect.
The public has 60 days to comment on the proposed rules. You can see a list of specific issues the U.S. Department of Health and Human Services (HHS) is requesting comment on in the Proposed Rule on Section 1557 document released by HHS (starting on page 176). Please take the time to make your voice heard. I know we will.
* * *
So what are the proposed language access provisions?
Here’s a rundown on the more pronounced proposed changes to Section 1557:
Currently under Section 1557, covered entities must post their nondiscrimination policies and taglines that describe the option for people to receive free language assistance services. The taglines must be posted in the covered entity’s top 15 languages. The new revisions aim to eliminate the tagline and nondiscrimination posting requirements in “significant” publications and communications.
Under the 2016 rule, the word “qualified” was added with a definition to describe the requirements that interpreters and translators must meet. This was a change from previous legislation that used the term “competent.” The new revisions propose to remove the word “qualified” but leave the definitions intact.
Language access plans
While having a formal language access plan is not specifically required under the current iteration of Section 1557, it’s something the Office for Civil Rights considers when evaluating a covered entity for compliance. Mention of language access plans will be stricken under the proposed rule, and whether the covered entity has developed and implemented such a plan will no longer be a consideration when evaluating compliance.
Video interpreting standards
Currently under Section 1557, video interpreting services for LEP individuals must comply with the standards set forth by the ADA that state the covered entity must use high-quality, real-time video that does not lag, is not choppy, and is not grainy; voices must be clear and audible; there needs to be a “dedicated high-speed, wide-bandwidth video connection or wireless connection”; images need to be sharply delineated and both the interpreter’s and patient’s hands, fingers, arms, and face need to be visible; and adequate training needs to be provided to staff using video interpreting equipment and services.
Proposed revisions include repealing the visual standards but keeping the audio standards for remote interpretation (“clear, audible transmission of voices; use of quality video connection without lagging or irregular pauses in transmission; and applicable training for staff to use the remote interpreting technology”).
It’s important to note that the video interpreting standards will not change for individuals with communication needs protected under the ADA; this change is only applicable to LEP individuals.
Concordance with current standards
The new revisions plan to make Section 1557 more consistent with the LEP guidance standards set forth by the Department of Justice (DOJ). This would include changing the provisions for meaningful access for LEP individuals. The new provision would change to “any entity operating or administering a health program or activity subject to this rule shall take reasonable steps to ensure meaningful access to such programs or activities by limited English proficient individuals.”
This would replace the 2016 rule, which states that covered entities 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 within the entities’ health programs and activities.”
In addition, the revisions include adopting the DOJ’s approach to determining a covered entity’s compliance, which balances the following four factors with an individualized assessment:
- The number or proportion of LEP individuals eligible to be served or likely to be encountered in the eligible service population;
- The frequency with which LEP individuals come in contact with the entity’s health program, activity, or service;
- The nature and importance of the entity’s health program, activity, or service; and
- The resources available to the entity and costs.
Under the 2016 rule, individuals can pursue legal action against the covered entity if they failed to provide the individual with proper language assistance. The new rule would reverse this provision, and “the Department would no longer take a position on that issue in its regulations, leaving the matter as primarily one for the courts to decide.”
Section 1557 compliance coordinator
The new rule proposes to eliminate the requirement for covered entities with 15 or more employees to designate a compliance coordinator and have a written grievance procedure in place.
Why the repeal?
In sum, HHS proposed the revisions to Section 1557 to “better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557.”
HHS has projected that the revisions will save an estimated $3.6 billion over the first five-year period after the regulations are finalized, a large portion of which will come from stripping the mandatory notices (i.e., taglines and nondiscrimination policies) requirement. HHS has also said the new provisions will ease any burden placed on covered entities and eliminate any redundancies to already established laws.
* * *
To learn more about how revisions to Section 1557 of the ACA have affected language access, download our comprehensive guide.