What Just Happened? The State of Language Access under Section 1557
0 likes877 views
This document summarizes a webinar presented by Mara Youdelman on the state of language access under Section 1557 after the Trump Administration issued new final regulations in June 2020. The new regulations made several changes to the 2016 final regulations implementing Section 1557, including repealing many nondiscrimination protections based on gender identity and sex stereotypes. Regarding language access, the new regulations put the "four factor test" for determining when language services are needed directly into the regulations. They also removed many specific requirements around translation of documents, notices, and taglines. However, Title VI and the HHS LEP Guidance still remain in effect. Overall, the new regulations reduced some language access requirements but entities are still
What Just Happened? The State of Language Access under Section 1557
- 4. What Happened? The State of Language Access Under Section 1557 Mara Youdelman Managing Attorney (DC Office) June 20, 2020
- 5. About NHeLP 5 • National non-profit law firm committed to improving health care access and quality for underserved individuals and families • Offices: CA, DC, NC • Join our mailing list at www.healthlaw.org • Follow us on Facebook & Twitter @nhelp_org and @marayoudelman
- 6. Roadmap • Background • New Final Regulations • Questions & Answers • Your Questions 7/1/20 6
- 7. June 12, 2020 • Trump Administration issued new final regulations implementing Section 1557 of the Affordable Care Act • The new regulations repealed many of the existing regulations but left others in place • What does this mean for language access? 7/1/20 7
- 9. BACKGROUND: Title VI of the Civil Rights Act of 1964 • “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d • “National origin” includes individuals with limited English proficiency (LEP) • Title VI, its implementing regulations and the OCR LEP Guidance (based on Title VI) all remain in effect 9
- 10. BACKGROUND: Section 1557 of the Affordable Care Act • Broad nondiscrimination protection • First time healthcare discrimination is prohibited based on: • sex; • gender identity, including transgender individuals; and • sexual stereotyping • Reinforces longstanding protections for race, ethnicity, national origin, age & disability • The Affordable Care Act, including Section 1557, remains in effect 10
- 11. BACKGROUND: Section 1557 – Scope • any health program or activity any part of which receives federal funding; • any health program or activity that is administered by an Executive agency; and • any entity created under Title I of the Affordable Care Act (including health insurance marketplaces) • This is broader than Title VI which only applied to those receiving federal funding 11
- 12. BACKGROUND: Who Is Covered by Title VI & 1557? Title VI & Sec. 1557 • All public and private entities receiving federal financial assistance, including: • State, county, and local agencies (inc. Medicaid, CHIP) • Hospitals, clinics, and clinicians’ offices • Refugee resettlement agencies • Nursing homes • Mental Health Centers • All entities receiving federal funds or under contract to those receiving federal funds Section 1557 • Federally administered programs • Medicare • Federally Facilitated Marketplace • Entities created under ACA Title I • state marketplaces • Qualified Health Plans (also receive federal funds) 12
- 13. BACKGROUND: Goal of Section 1557 • Bring all civil rights protections under 1 provision • Title VI (discrimination on the basis of race/color/national origin) • Title IX (discrimination on the basis of sex) • Sec. 504 (discrimination on the basis of disability) • Age Discrimination • Why? • Intersectionality • Differing remedies under each civil rights law • Expand protections against sex discrimination into health care 13
- 14. Hierarchy of Law 14 Statute • Passed by Congress & signed by President • Can’t be changed without enacting a new law Regulations • Developed by Agencies • Requires Public Comment process • Can’t be changed without new public comment process Guidance • Developed by Agencies • Usually no public comment process • Can be changed by agency • Includes Executive Orders, FAQ
- 15. Hierarchy of Law 15 Statute • Title VI • ACA Section 1557 Regulations • Section 1557 final rule (2016) • Title VI regulations Guidance • HHS LEP Guidance • Many documents on Lep.gov
- 16. History of Sec. 1557 ACA enacted March 23, 2010 Request for Information August 2013 Notice of Proposed Rulemaking Sept. 2015 Final Regulations May 2016 2nd Notice of Proposed Rulemaking May 2019 2nd Final Regulations June 2020 16
- 18. New Final Regulation (June 12, 2020) • Changes 2016 final rule implementing 1557 • NHeLP press release -- https://healthlaw.org/news/in-the-middle-of-a-pandemic-trump-rolls-back-health- care-nondiscrimination-protections/ • Significant changes outside of language access: • Rollback of protections against discrimination based on gender identity, sex stereotypes and termination of pregnancy • Eliminates definition section • Eliminates requirements to have a compliance coordinator and written grievance procedures • Repeals enforcement-related provisions & changes remedies • Changes other regulations to follow these and eliminate explicit nondiscrimination protections based on sexual orientation and gender identity Sources: Final Rule: Nondiscrimination in Health and Health Education Programs or Activities; https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-11758.pdf; see also, Katie Keith, Health Affairs Blog: HHS Strips Gender Identity, Sex Stereotyping, Language Access Protections From ACA Anti-Discrimination Rule, https://www.healthaffairs.org/do/10.1377/hblog20200613.671888/full/.. 18
- 19. Who’s Covered? • Changes focus from each individual’s needs to all LEP individuals as a group • 2016 – provide meaningful access to each LEP individual eligible • 2020 – take reasonable steps to ensure meaningful access by LEP individuals • When language services must be provided, they must be: • Free of charge • Be accurate and timely • Protect the privacy and independence of the individual with LEP 19
- 20. LEP 4 Factor Test • Puts the “4 factor test” into regulations • But this eliminates the individual focus • In evaluating compliance with ensuring meaningful access, OCR may assess how an entity balances: • Number/proportion of LEP individuals eligible to be served or likely to be encountered in the eligible service population; • Frequency with which LEP individuals come into contact with the entity’s health program, activity or service; • Nature and importance of the entity’s health program, activity or service; and • Resources available to the entity and costs 20
- 21. Qualifications of Interpreters & Translators • Deletes “qualified” as part of definition & “above average familiarity with” • HHS notes it uses “qualified” a number of times throughout the regulation • Minimum qualifications, including: • adheres to generally accepted interpreter/translator ethics principles, including client confidentiality • has demonstrated proficiency in speaking and understanding at least spoken English and the spoken language in need of interpretation/translation; • 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 21 NOTE: Due to this definition, implicit recognition that not all interpreters can translate and vice versa
- 22. Use of Family Members/Minors • Same as existing regulations • Prohibits use of minors except in emergencies • Prohibits use of accompanying adults except in emergencies or upon patient request • Prohibits reliance on staff other than qualified bilingual/multilingual staff to communicate with individuals with LEP 22 NOTE: Some entities may want to have their own interpreter present even if a patient wants to use a family member/friend
- 23. Remote Interpreting Services • Deletes requirement for real-time video for foreign language interpreters • 2016 – requires a “sharply delineated image that is large enough to display the interpreter’s face. . .” • 2020 – “Real-time, audio over a dedicated high-speed, wide bandwidth video connection or wireless connection that delivers high-quality audio without lags or irregular pauses in communication • 2016 & 2020 both require: • a clear, audible transmission of voices; and • adequate training to quickly and efficiently set up and operate the remote interpreting service Final Rule: Nondiscrimination in Health and Health Education Programs or Activities; https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-11758.pdf at p. 329. 23
- 24. Taglines • 2016 – taglines on all “significant” documents and notices in top 15 languages in a state • 2020 – no taglines required on any documents • Saves $3.1B • Complaints by insurers and pharmacy benefit managers that “significant” documents was too broad and they were including taglines with every document (EOB, notice, etc.) • Tagline requirements may still exist in other federal regulations – e.g. Medicare Part D (Rx program) 24
- 25. Notices • 2016 – Employers with at least 15 employees must • provide notices about its nondiscrimination policies • designate at least one employee to carry out the responsibilities under Section 1557 • adopt grievance procedures with appropriate due process standards to resolve actions prohibited under Section 1557 • Must include taglines in top 15 languages in each state • 2020 – no notices 25
- 26. Translation of Written Materials • No specific thresholds for when to translate documents in statutes or regulations • HHS LEP Guidance (2003) recommended translating “vital” documents & includes safe harbor • Proposed rule deletes requirements for taglines in “significant” publications & communications SUMMARY “Vital” documents should be translated Taglines can be used but are not required 26
- 27. So where are we? • Title VI is still law! • HHS OCR LEP Guidance (2003) still in effect! • Section 1557 is still law! • Only the Section 1557 implementing regulations were changed 7/1/20 27
- 28. Other Relevant Provisions • Repeals provisions that applied Section 1557 to non-marketplace plans, employer-based plans, ERISA plans – this greatly reduces the scope of Section 1557 in a way not intended by Congress • Applies only to government funded programs (e.g. Medicare, Medicaid, CHIP, etc.) and marketplace plans • If an insurer has plans in both markets, only marketplace plans are subject to Section 1557 • Greatly reduces protections for LEP, LGBTQ, people with disabilities, women, etc. • Repeals provisions that prohibited “benefit design” discrimination 7/1/20 28
- 29. Supreme Court Decision on Sex Discrimination • On June 15, 2020, sex discrimination under T. VII (prohibiting discrimination in the workplace) includes discrimination against LGBTQ • Trump Administration final rule uses definition under T. IX (prohibiting discrimination in education) • Significant overlap between T. VII and T. IX but likely will need a court decision that T. IX prohibits sex discrimination in the same way as T. VII; if that happens, it would: • Reinstate Sec. 1557 prohibition of discrimination based on gender identity • Expand Sec. 1557 to protecting against discrimination based on sexual orientation 7/1/20 29
- 30. State Laws • Check for state nondiscrimination laws & regulations • e.g. CA has a state nondiscrimination law, • Some states are putting out statements post-final rule • https://www.dhcs.ca.gov/Documents/DHCS-Nondiscrimination-Statement.pdf • Check for state language access laws & regulations • Summary of State Law Requirements Addressing Language Needs in Health Care (2019 update) 7/1/20 30
- 31. Outlook for 2020 Public Comment period 60 days HHS considers comments HHS publishes new final rule June 12, 2020 Rule is effective 60 days post- publication Approx. Aug. 18, 2020 31 Legal Challenges expected
- 32. What’s next re: 1557? • Expected challenges to Trump final Section 1557 rule • Final rule is effective around August 18, 2020 BUT • Court challenges could prevent all/some of it from going into effect • Statutory provisions & LEP Guidance remains • Section 1557 can be enforced in court • Texas v. U.S. – arguments at the Supreme Court expected during Fall 2020 • The case challenges the constitutionality of the entire ACA, including Section 1557 32
- 34. QUESTION: Did the law (statute) change? • NO! • The Administration cannot repeal a statute so both Section 1557 and Title VI remain the law and remain in effect • Only the regulations have changed 7/1/20 34
- 35. QUESTION: Do entities still have to provide language services? • YES! • All covered entities must provide some services • What specific services must be provided depends on a case-by- case analysis using the 4-factor test • Language services can include: • in-person and remote (telephonic and/or video) interpreters • Taglines and translated documents • direct assistance in a non-English language by competent staff 7/1/20 35
- 36. QUESTION: What qualifications must interpreters/translators have? • Interpreters & translators must meet specific minimum qualifications, including: • adheres to generally accepted interpreter/translator ethics principles, including client confidentiality • has demonstrated proficiency in speaking and understanding at least spoken English and the spoken language in need of interpretation/ translation; • 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 7/1/20 36
- 37. QUESTION: Can a provider provide services in a non-English language? • YES but only if the provider is competent to do so • The provider must have the requisite language proficiency, including specialized terminology 7/1/20 37
- 38. QUESTION: Can entities require patients to bring their own interpreters? • NO! • 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 • Accompanying Adult – emergency or on request of patient and only if “reliance on that adult for such assistance is appropriate under the circumstances” • Minor – only in an emergency • Requirements re: interpreter qualifications still apply 7/1/20 38
- 39. QUESTION: Can a covered entity charge a patient for language services? • NO! • Language services must be no-cost, timely, and accurate 7/1/20 39
- 40. QUESTION: Can an entity still use taglines and send notices? • YES! • While the final rule no longer requires taglines and notices, it doesn’t prohibit their use • Taglines can be an effective way to notify LEP patients of how to request language services and what to do if they don’t get them 7/1/20 40
- 41. QUESTION: Should an entity still use taglines and send notices? • YES! • The statutory requirements remain. So having effective language services, including providing information to LEP individuals of how to access them, can document an entity’s compliance with the law • These also help entity’s appropriately plan in advance of how to provide language services and ensure services are in place 7/1/20 41
- 42. QUESTION: Can an entity still translate documents? • YES! • While the final rule does not require translation of written documents, the LEP Guidance still provides “safe harbors” if entities translate documents when 5% or 1,000 LEP individuals are in the service area 7/1/20 42
- 43. QUESTION: Should an entity create a language access plan? • YES! • While the rule doesn’t require language access plans, they can be an effective way to map out what services your entity provides, how it will provide language services, and inform staff of available resources 7/1/20 43
- 44. QUESTION: How does the final rule interact with the CLAS Standards? • OMH’s Culturally and Linguistically Appropriate Services (CLAS) standards are not required by law • BUT some of the CLAS Standards are based on Title VI and Section 1557 so they can be a useful tool to determine policies and practices for your organization to ensure it does not discriminate • The CLAS Standards also take an intersectional approach to protecting individuals who may have language barriers plus also other factors that subject them to discrimination (e.g. disability, age, gender, gender identity, etc.) 7/1/20 44
- 45. QUESTION: Can we continue to use video interpreting? • YES! • The rule doesn’t require use of video-interpreting, allowing audio-only, but video interpreting can assist interpreters in picking up visual cues that are important to ensure effective communication 7/1/20 45
- 47. Resources • NHeLP’s Civil Rights & Health Equity Page – https://healthlaw.org/our-work/policy/civil-rights-and-health- equity/ • NHeLP’s Equity Stance – https://healthlaw.org/equity-stance/ • Summary of State Law Requirements Addressing Language Needs in Health Care (2019 update) • Coming soon – analysis of Sec. 1557 NPRM + blog series 47
- 48. Mara Youdelman Managing Attorney (DC Office) youdelman@healthlaw.org @marayoudelman www.healthlaw.org @nhelp_org