TO: Critical Measures’ CME Course Learners
FROM: David B. Hunt, J.D., President and CEO, Critical Measures, LLC.
DATE: May 14, 2016
RE: Important New Language Access Legal Developments
Newly Adopted Anti-Discrimination Changes to ACA Represent Biggest Changes in The Law of Language Access in Nearly Twenty Years.
On May 13, 2016 the Department of Health and Human Services (DHHS) formally adopted final changes to section 1557 of the Affordable Care Act ACA. The new rules are slated to take effect on July 18, 2016 and will be codified as 45 CFR part 92. These changes are sweeping in scope as they apply to “every [federal] health program or activity, any part of which receives Federal financial assistance.”
Section 1557 is a “non-discrimination” provision that broadly prohibits discrimination in health care or health coverage on the basis of race, “color”, national origin (including immigration status and English language proficiency). Section 1557 is unique among Federal civil rights laws in that it specifically addresses discrimination in health programs and activities. The final rule combines, expands (by prohibiting discrimination on the basis of sex, sexual orientation and gender identity) and harmonizes existing, well-established federal civil rights laws and clarifies the standards that HHS will apply in implementing Section 1557 of the Affordable Care Act.
Section 1557 explicitly prohibits discrimination by:
- Any health program or activity that receives federal financial assistance, including credits, subsidies, or contracts of insurance (e.g. Medicaid and CHIP)
- Any program or activity that is administered by a federal agency (e.g. Medicare and the federally facilitated marketplace); and
- Any entity created under Title I of the ACA (e.g. state-based, state partnership and the federally facilitated marketplaces).
As these proposed changes apply to national origin discrimination (and hence to immigrants and Limited English Proficient patients), the major changes are as follows:
- Hospitals, health plans, clinics, nursing homes, physicians and other providers must offer “qualified interpreters” to Limited English Proficient patients. The major problem in the language access field is that too often, providers attempt to “get by” without the use of trained interpreters when treating LEP patients. Despite a strong consensus in the academic and research communities about the quality and safety risks of using untrained bilingual staff, adult family members and friends and minor children as interpreters, even today a majority of providers throughout the U.S. continue to use untrained interpreters even when qualified interpreters are readily available in person or remotely via telephone or video remote devices.
Subpart C to Section 1557 of the ACA deals with these issues head on. Specifically, subsection 92.201 addresses meaningful access for individuals with limited English proficiency and requires providers to offer LEP patients a qualified interpreter. In the past, DHHS regulations dating back to 2003 merely required that oral interpreters be “competent.” While “competency require[d] more than self-identification as bilingual” formal certification was not required.”
Under the new draft rule, a “qualified interpreter” is defined as an interpreter who “via a remote interpreting service or an on-site appearance”:
1. adheres to generally accepted interpreter ethics principles, including client confidentiality;
2. has demonstrated proficiency in speaking and understanding both spoken English and at least one other spoken language; and
3. is able to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary and phraseology.
While the new regulations do not specifically, require the use of certified medical interpreters, that is clearly their implied intent since to be a qualified interpreter one must first have gone through some type of qualification process. The draft regulations underscored this point by stating that: “the fact that an individual who has above average familiarity with speaking or understanding a language other than English does not suffice to make that individual a qualified interpreter for an individual with limited English proficiency.”
- By moving the legal standard from “competent” interpreters to “qualified” interpreters, DHHS is increasing the standard of care and legal duty owed to LEP and Deaf and Hard of Hearing patients and requiring organizations that receive federal funds to bear the financial burden of increasing the professionalism of their language access services.
- The final rule explicitly bans the use of minor children as medical interpreters. Indeed, providers are not only prohibited from relying on minor children as interpreters they are also instructed not to rely on minor children to “facilitate communication” with LEP patients. The only exception to this rule is “an emergency involving an imminent threat to the safety or welfare of an individual or the public where no qualified interpreter is immediately available.”
- The final rule prohibits the use of adult family members and friends as medical interpreters. However, the final regulations allow two exceptions to this general rule. First, adult family members and friends may be used as medical interpreters in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter is immediately available. (Note: since most leading national telephonic and video remote interpreting companies can make qualified interpreters available in hundreds of languages within seconds, this exception should be regarded as limited.) Second, adult family members and friends may be used as medical interpreters where the LEP person “specifically requests that the accompanying adult interpret or facilitate communication and the accompanying adult agrees to provide such assistance.” However, the rule makes plain that providers are not relieved of their legal duty to provide a qualified medical interpreter where an LEP patient elects to use an adult family member or friend since even then, “reliance on that adult [family member or friend must be] appropriate under the circumstances.”
- The final rule severely restricts bilingual or multilingual staff without formal training in medical interpreting from serving as medical interpreters. The final rule distinguishes between “qualified bilingual/multilingual staff” and untrained bilingual/multilingual staff. According to the final rule, only the former may be used as medical interpreters for LEP patients. Qualified bilingual/multilingual staff is defined as “a member of a [provider’s] workforce who is designated to provide oral language assistance as part of the individual’s current, assigned job responsibilities and who has demonstrated” [emphasis supplied] that he or she:
1. is proficient in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized vocabulary, terminology, and phraseology, and
2. is able to effectively, accurately, and impartially communicate directly with individuals with limited English proficiency in their primary languages
As the draft version of the regulations noted: “because the definition of a qualified interpreter includes adherence to generally accepted interpreter ethics principles, bilingual or multilingual staff who are competent to communicate directly with individuals with limited English proficiency may not satisfy a requirement to adhere to such principles.” According to the final version of the rules, bilingual staff must not only be qualified to serve as medical interpreters, they must be able to demonstrate their proficiency in doing so.
- The final rule makes it illegal to require an individual with limited English proficiency to provide his or her own interpreter during medical encounters. Further, while LEP patient are not required to accept (free) language access resources offered by providers, it is illegal for providers to “coerce individuals to decline language assistance services.”
- The final rule significantly expands the universe of individuals to whom a legal duty is owed to provide language access services. The new rule does this in two ways. First, the rule imposes a general requirement on providers to “take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in its health programs and activities.” (Emphasis supplied.) Secondly, the final rule adds a specific provision designed to prevent discrimination on the basis of “association”. In practical terms, this means that the duty to provide qualified medical interpreters is not confined to LEP patients but also extends to family members, spouses or same-sex partners of LEP patients who are themselves LEP. Similar non-discrimination provisions apply “by association” to a Deaf or Hard of Hearing family member, spouse or same-sex partner of Deaf and Hard of Hearing patients, thereby guaranteeing them access to qualified ASL interpreters.
- While the final revisions to section 1557 of the ACA provide much support for providers’ use of qualified remote medical interpreters, DHHS also signaled its concerns about the quality and safety aspects of this new technology by setting new standards for providers’ use of video remote interpreters. According to the final rule, “providers who provide a qualified medical interpreter to LEP individuals through video remote interpreting shall provide:”
1. Real-time, full-motion video and audio over a dedicated high-speed, wide bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images or irregular pauses in communication;
2. A sharply delineated image that is large enough to display the interpreter’s face and the participating individual’s face regardless of the individual’s body position;
3. A clear, audible transmission of voices; and
4. Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the video remote interpreting
- Final revisions to section 1557 of the ACA make plain that providers are not only required to provide qualified oral medical interpreters, they are required to provide qualified translators of written translated materials. In the discussion of the rationale for the final changes to the rule, DHHS noted that it had become concerned about providers’ use of untrained translators to translate complex, highly technical medical documents. Accordingly, the final rule requires providers to use translators who:
1. Adhere to generally accepted translator ethics principles, including client confidentiality;
2. Has demonstrated proficiency in writing and understanding both written English and at least one other written non-English language; and
3. Is able to translate effectively, accurately, and impartially to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology.
- Under the final rules, Language Access Plans are not required. However, DHHS makes plain that when evaluating providers’ compliance with sub-section 92.201(a)’s meaningful access requirement, it will consider whether providers’ have “developed and implemented an effective written language access plan that is appropriate to its particular circumstances.” According to DHHS, the language “appropriate to its particular circumstances” is meant to convey that providers’ need to engage in voluntary planning will “vary depending on the entity’s particular health programs and activities, its size, its geographic location, and other factors.”
- Assurances of compliance required. When applying for Federal financial assistance, providers must, as a condition of the application, submit assurances that its health programs and activities will be operated in compliance with Section 1557 of the ACA.
- New private cause of action created that includes national origin discrimination claims by Limited English Proficient patients under Section 1557 of the ACA. In the wake of the U.S. Supreme Court’s decision in the Sandoval case, it was understood that LEP plaintiffs had no private cause of action on language access grounds under Title VI of the Civil Rights Act of 1964. However DHHS has made plain that the final rules to Section 1557 of the ACA finally give LEP plaintiffs a private cause of action under the non-discrimination provisions of the ACA. According to DHHS, “OCR interprets Section 1557 as authorizing a private right of action for claims of disparate impact discrimination on the basis of any of the criteria enumerated in the legislation.” Such criteria include age, race, color, national origin (including LEP), sex, or disability. Compensatory damages are explicitly allowed for statutory violations of Section 1557 of the ACA. Further, DHHS specifically noted that “nothing in Section 1557 changes the laws that otherwise would govern eligibility for attorneys’ fees, including the Civil Rights Attorney’s Fees Award Act of 1976.”
- OCR will consider performing unannounced, onsite reviews of providers compliance with section 1557 of the ACA.
- Designated Employee. Covered entities (providers who receive federal funds from Medicare, Medicaid or SCHIP programs) with at least 15 employees are required to designate at least one employee to carry out certain specified responsibilities under Section 1557 of the ACA.
- Grievance Procedures. Covered entities (providers who receive federal funds from Medicare, Medicaid or SCHIP programs) with at least 15 employees would be required to provide grievance procedures (with appropriate due process standards) to resolve any disputes regarding actions prohibited under Section 1557 of the ACA.
- Public/Patient Notice Requirement. All covered entities will have to take initial and continuing steps to communicate with beneficiaries, enrollees, applicants, and the public about its nondiscrimination policies. Entities must provide a notice encompassing seven factors, including that the entity does not discriminate (on the basis of national origin, immigration, language and disability and other factors) and that it provides appropriate interpreters and auxiliary aids and services, free of charge, to ensure effective communication for individuals who are LEP or have a disability. These notices must include taglines in the top 15 languages spoken nationally. These notices must be included in “significant publications” and posted in “conspicuous physical locations where the entity interacts with the public.” In particular, such notices must be accessible from the organization’s website.
- Mandatory employee training on the new ACA Section 1557 regulations is not required. Although OCR “encourages covered entities to train employees on compliance with Section 1557 periodically, OCR does not believe it is necessary for the final rule to mandate training. However, to facilitate training that covered entities choose to provide, OCR is preparing and will make available a training curriculum for their use in advance of the effective date of the rule. OCR also expects to engage in outreach and technical assistance to promote understanding of and compliance with the final rule.
- To read an excellent overall review of the nondiscrimination provisions of the ACA and the impact of the (draft) section 1557 rules, see: Nondiscrimination and the ACA, Health Advocate, a publication of the National Health Law Program, September 2015 by Mara Youdelman, J.D. available at: http://www.healthlaw.org/issues/health-disparities/language-access/Health-Advocate-Nondiscrimination-ACA#.VhfInqUo6po
- To read the DHHS press release announcing the release of the final ACA section 1557 rules, click here: http://www.hhs.gov/about/news/2016/05/13/hhs-finalizes-rule-to-improve-health-equity-under-affordable-care-act.html#
- To review the actual final regulations pertaining to section 1557 of the ACA, use the following link: http://www.hhs.gov/civil-rights/for-individuals/section-1557
- For further information about Critical Measures e-learning program entitled “Language Access and the Law – Caring for the Limited English Proficient Patient” contact David Hunt at Critical Measures at (612) 746-1375 or (612) 558-0028. E-mail: email@example.com