On August 4, 2022, the US Department of Health and Human Services (HHS) published a proposed rule in the Federal Register related to Section 1557 of the Affordable Care Act (ACA).
Enacted in 2010, the ACA expanded healthcare access eligibility to people previously without health insurance in the US. Section 1557 prohibits discrimination on the basis of several protected classes.
According to the proposed rule, “For [limited English proficiency] individuals, the lack of proficiency in English and the use of non-English languages is often tied to their national origin. The provision of free and effective language assistance services to LEP individuals is essential to ensure compliance with nondiscrimination laws.”
The new rule walks back certain changes made during the Trump administration. For example, a Trump-era rule did not require healthcare providers to post notices informing patients of their language access rights.
Bill Rivers, Advocacy Consultant for the Association of Language Companies, told Slator that language access advocates — including representatives from the American Translators Association (ATA), the ALC, and other organizations — have been working several years to get these provisions put back in.
Other provisions restored by the proposed rule include standards for video remote interpreting (VRI) and a requirement that healthcare entities with 15 or more employees designate an individual to coordinate compliance.
The 97-page document also outlines requirements for staff training in language access and defines when and how machine translation (MT) may be used for healthcare-related communications.
Notably, MT output must be reviewed by a “qualified human translator” for content that is “critical to the rights, benefits, or meaningful access of an LEP individual; when accuracy is essential; or when the source documents or materials contain complex, non-literal, or technical language.”
Perhaps, most significantly, the proposed rule would apply Section 1557 to Medicare Part B, which pays for many outpatient services — a change Mara Youdelman, Managing Attorney of the National Health Law Program (NHeLP), said her organization has been promoting for over 20 years. While Section 1557 has always applied to Medicare Part A (hospital services), Medicare Part C (managed care), and Part D (prescription drugs), language access has yet to be classified as fully reimbursable by Medicaid or Medicare.
In other words, the federal government requires that healthcare providers offer language access to anyone who needs it — but at the healthcare providers’ expense. “Right now it’s all sticks and no carrots, but if you’re denied language access you can file a complaint,” Rivers said.
He added, “Whether the [Office for Civil Rights] investigates a complaint is a function of the OCR’s resources. What we’ve seen historically with language access issues is, unless something is a really obvious instance of disparate treatment, the tendency has been for the OCR to pursue investigation of larger entities.”
Public comments on the proposed rule will be accepted until October 3, 2022. NHeLP plans to create a “comment portal” and “template” comments, and encourages organizations to urge members to submit feedback, especially those including data and stories from their own experience.
Youdelman said NHeLP hopes the new rule will be finalized as soon as possible after the OCR considers the public’s input.
“Normally, a final rule can take effect 60 days after it is published in the Federal Register,” Youdelman said. “However, as we have seen with the past two final Section 1557 regulations, court challenges may delay implementation of certain provisions.”
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