On June 12, 2020 the United States Department of Health and Human Services (HHS) released their Final Rule on Section 1557. To help you understand how to comply with the new ruling, we analyzed which language access requirements changed and which remained the same.
What is Section 1557?
Section 1557 of the Affordable Care Act deals with nondiscrimination. A significant portion of HHS’s original rule focused on the care of limited-English proficient (LEP) patients, building on the precedent set by Title VI, which prohibits national origin discrimination and mandates language access in healthcare.
Since some of the details changed under HHS’ Final Rule, we compiled them here to help you through the Section 1557 requirements regarding language access.
Post a Notice of Nondiscrimination and Taglines
1557 required providers to post a notice of nondiscrimination and taglines (short statements advising language services are available) in the state’s/hospital’s top 15 languages.
HHS repealed the requirement that covered entities must provide a nondiscrimination notice and taglines in all significant communications.
It removes the broad, sometimes confusing, and inefficient requirement that all significant communications must contain taglines.
Entities are still mandated from prior statutes and regulations to provide a notice of nondiscrimination. Covered entities must continue to provide taglines (short statements advising language services are available) whenever such taglines are necessary to ensure meaningful access by LEP individuals to a covered program or activity.
Eliminate unqualified interpreters
Section 1557 requires qualified interpreters and prohibits the use of:
- A patient’s minor children (except in emergencies to prevent imminent patient harm)
- Adult family and friends (unless the patient refuses an interpreter – provider may still utilize an interpreter if they determine the family member/friend cannot interpret adequately)
- Bilingual staff, unless interpreting is part of “the individual’s current, assigned job responsibilities” and the staff member “has demonstrated* that he/she 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;
Is able to effectively, accurately, and impartially communicate directly with individuals with limited English proficiency in their primary languages.”
*Demonstrating these skills will likely require some form of interpreter training/certification
The 2020 Rule retains many of the 2016 Rule’s provisions related to interpreter access for LEP individuals.
This Final Rule removes definitions of the terms “qualified bilingual/multilingual staff” and “individual with limited English proficiency.”
The 2019 NPRM (Notice of Proposed Rulemaking) expressed HHS’s commitment to interpreting those terms naturally and consistently with the 2016 Rule.
Provide qualified interpreters to patients/family members/spouses/partners
Section 1557 mandates that providers “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.” It also bans discrimination based on association, meaning providers must supply interpreters as-needed to their patients’ families, spouses, or partners as-needed.
The Rule maintains that entities are obligated to take reasonable steps to ensure meaningful access to covered health programs and activities for LEP individuals.
HHS replaced the two-factor test with the Department of Justice’s 2003 LEP Guidance four-factor test, which assesses how an entity should provide meaningful access:
- 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.
HHS also repealed the language that prohibits discrimination against an individual or entity on the basis of being known to or believed to have a relationship or association.
This Final Rule clarifies where language assistance services are required to be offered by a covered entity:
- they must be no-cost, timely, and accurate;
- that translators or interpreters provided in order to comply with the law must meet specific minimum qualifications, including ethical principles, confidentiality, proficiency, effective interpretation, and the ability to use specialized terminology as necessary in the healthcare setting;
- and that a covered entity may not require an individual with LEP to bring his or her own interpreter or rely on a minor child or accompanying adult to facilitate communication, except under limited exceptions
Confirm that remote interpretation options are fully functional
Section 1557 supports the use of qualified phone and video interpreters to help providers deliver timely language access to their LEP patients – with the caveat that video interpretation must meet the quality standards set for ASL interpretation by the Americans with Disabilities Act:
- “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.
- A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position.
- A clear, audible transmission of voices.
- Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.”
This Rule permits remote English-language interpreting services to be audio-based rather than requiring them to be video-based.
HHS removed the requirement for matching the quality standards set for ASL interpretation by the Americans with Disabilities Act.
Section 1557 still supports the use of qualified phone and video interpreters to help providers deliver timely language access to their LEP patients.
Train staff to understand the importance and consequences of 1557
Section 1557 grants LEP individuals a specific cause of action against healthcare providers that fail to “take reasonable steps to provide meaningful access.” This is a departure from Title VI of the Civil Rights Act (the previous law on language access), which allowed fines and Medicare/Medicaid cuts for non-compliant hospitals but did not enable individual patients to sue for discrimination. Staff should understand the potential consequences of non-compliance and be well trained in accessing an interpreter quickly and efficiently.
HHS has repealed this, instead reverting enforcement as applied under Title VI, Title IX, the Age Act, or Section 504.
HHS has concluded that its enforcement of Section 1557 should conform to the Department of Justice’s Title VI Manual. The manual states that, under applicable Federal case law, compensatory damages are generally unavailable for claims based solely on a Federal agency’s disparate impact regulations.
HHS states that the prior regulations will provide for enforcement of Section 1557 in applicable circumstances in the same way.
Other Significant Changes for Language Services in the 2020 Rule for Section 1557:
- Clarifies that the provision of health insurance is not a “health program or activity.”
- The HHS LEP Guidance continues to encourage recipients to produce language access plans, but does not require them.
- This Final Rule repeals the requirement for each covered entity with 15 or more employees to have a compliance coordinator and a written grievance procedure to handle complaints alleging violations of Section 1557.
The material herein is educational and informational only. No legal advice is provided.