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Spring brings new flowers, and in our case, a brand-new, updated set of regulations implementing Section 1557 of the Patient Protection and Affordable Care Act (PPACA)! Released on Friday, April 26, and scheduled for formal publication in the Federal Register on May 6, the final regulation Incorporates almost everything that the ALC asked for.
The regulation goes into effect 60 days after publication.
This advocate goes into some depth – we’ll be here longer than usual – but these regulations are foundational to the language access vertical. The ALC and its members worked hard to get our voices heard and our ideas on the record. And we succeeded! We got almost everything we asked for and then some.
How we got here:
First, a quick refresher on how we got here. Section 1557 of the PPACA (aka, the Affordable Care Act, ACA, Obamacare) requires that covered entities do not discriminate on the basis of race, religion, national origin, gender, sexual orientation, physical or mental handicaps, pregnancy, age, and other protected categories. Section 1557 explicitly references Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Aging Act, and other well-established and long-standing federal statutes banning discrimination and requiring equal treatment and equal access under the law – foundational principles found in the 5th and 14thAmendments to the US Constitution.
The original regulations implementing Section 1557 were finalized in 2016, and folks who work in language access in healthcare know them well. However, in 2019 and 2020, the prior administration decided to revise the regulations ahead of schedule, which the Administrative Procedures Act permits in limited cases, where the economic impact of a regulation changes, technology evolves rapidly, or Congress amends the underlying legislation.
In the case of the Section 1557 regulations, the previous administration claimed that language access, and in particular, the provision of “taglines” and other notifications of the availability of language access, created an undue economic burden on covered entities (these being healthcare providers of all kinds, insurers, state health agencies, and so on). Based on this pretext – that covered entities spent $3b/year, on average, to provide notice of the availability of language access – the prior administration stripped the regulation of much of its protections against non-discrimination.
A number of healthcare civil rights sued in federal court, and a district court judge in Washington DC ruled that the removal of protections for LGBTQIA+, pregnant women, and other categories was arbitrary and capricious and thus prohibited under the Administrative Procedures Act, which governs how the Executive Branch writes regulations. But, to our chagrin, the judge sided with the prior administration on language access. We lost several key provisions – the requirement for notification of language access availability and the rights to it; the requirement for an onsite language access coordinator, and more.
Following the 2020 election, the US Department of Health and Human Services made known its intention to revise the language access regulations. An informal coalition of language access groups, industry associations, interpreter associations, and civil rights organizations developed a comprehensive list of things we wanted to see in the regulation, as well as detailed, data-driven justifications for them and templates for stakeholders to use in submitting comments.
The Office of Civil Rights at the US Department of Health and Human Services released a “Notice of Proposed Rulemaking” – that is, a draft regulation – in August of 2022, with a deadline to respond in October 2022. ALC sprang into action with templates and suggestions for members’ comments, webinars on the new regulations, information at the ALC Summit, and more.
In the end, the Department of Health and Human Services received more than 85,000 comments, of which more than 15,000 were unique comments from specific individuals or organizations. (The other 70,000 were from some 30 advocacy campaigns using canned messages).
What We Got:
The final regulation makes a number of changes that will directly impact how language access in healthcare is provided.
•Coverage:
- Both Medicare Part B (doctor’s offices) and Medigapplans and service providers are now explicitly subject to section 1557
- Telehealth is fully included and must comply with all nondiscrimination requirements of the PPACA
- Family members and other companions accompanying an LEP patient are also entitled to language access
•Ad-hoc interpreters:
- The final rule includes much stronger protections against using ad-hoc interpreters, and especially minor children:
- LEP patients must affirmatively request that an ad-hoc interpreter – family member, community member, etc. - be used, and that request must be made in private, with a qualified interpreter present.
- Except in very limited, exigent circumstances, while an interpreter is being sought, children are not to be used as ad-hoc interpreters
•Quality of remote interpreting: the rule restores the 2016 requirements for quality of remote interpreting (VRI and OPI) and adds a requirement that, if VRI is used, staff receive regular training in its use
•Relay interpreting is added as a definition, with a cogent explanation of the circumstances where it is often needed (Lenguas indígenas, non-ASL sign languages, etc.)
•The rule restores requirements to notify patients of their rights to:
- Nondiscrimination
- Availability of language access
•The rule includes strengthened provisions for access for the Deaf and Hard of Hearing and the Blind
•The rule restores and expands organizational infrastructure requirements, including:
- a section 1557 coordinator for health care providers with 15 or more FTEs; this covers all aspects of non-discrimination, including specifically language access
- written non-discrimination policies AND
- written language access procedures with required periodic review, as well as Grievance procedures
- Annual training on relevant §1557 responsibilities and how to meet them.
•For the first time, a federal regulation takes up AI and language access.
- First, the regulation adds a definition for Machine Translation
- Second, the regulation requires that if MT used for anything where “the underlying text is critical to the rights, benefits, or meaningful access of an individual with LEP; when accuracy is essential; or when the source documents or materials contain complex, non-literal, or technical language.,” the MT must be reviewed by a qualified human translator
Other interesting provisions:
- Covered entities must include names and contact information for qualified bilingual staff in their language access procedures.
- The regulation restores the definitions of qualified interpreter, qualified translator, and qualified bilingual staff
•Artificial Intelligence:
- Liability: Healthcare providers have civil rights liability for discrimination resulting from the use of AI algorithms in patient care and decision-making, separate from any liability the AI developer may have. The developer may also have liability.
- The Department of Health and Human Services invites further comments on the use of AI outside of diagnoses and patient decision-making. ALC has been working with the national language access coalition (a very informal group of leaders in a number of organizations) on guidance for AI in language access in healthcare. You can bet on SAFE-AI being consulted, as well as ALC and its members.
•What we didn’t get: US DHHS declined to add a requirement to document the patient’s preferred language in their patient record. (That’s it – the only thing we didn’t get).
All in all, this regulation is a huge win for language access, our industry, and language professionals.
And our last bit for this Advocate:
We have an upcoming advocacy opportunity: DHS USCIS – Citizenship and Immigration Services – will hold a listening session this Thursday, May 2, at 3:00 ET. USCIS is considering a requirement to provide language access in asylum hearings. At present, asylum applicants are required to bring their own interpreter. Contact Bill Rivers (advocacy@alcus.org) if you want to participate.
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