Section 1557 Language Access Provisions of the Affordable Care Act Lesley Morgan, Investigator U.S. Department of Health and Human Services Office for Civil Rights WASCLA Summit October 21, 2016

Office for Civil Rights Part of the U.S. Department of Health and Human Services (HHS) Enforces the Health Information Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification rules Enforces a number of civil rights laws as they relate to recipients of Federal financial assistance from HHS Title VI of the Civil Rights Act of 1964 Section 504 of the Rehabilitation Act of 1973 Title II of the Americans with Disabilities Act of 1990 The Age Discrimination Act of 1975 Section 1557 of the Affordable Care Act

Section 1557 Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. This provision went into effect in March 2010 with the signing of the Affordable Care Act. OCR published the implementing regulation on May 18, 2016. Effective date of regulations: July 18, 2016. Section 1557 expands on Title VI of the Civil Rights Act, which prohibited discrimination on the basis of race, color, and national origin.

Applicability Section 1557 regulations apply to: All health programs and activities that receive federal financial assistance from HHS. All health programs and activities administered by HHS. Health Insurance Marketplaces and all health plans offered by health insurance companies that participate in the Marketplaces. Any entity that is principally engaged in health services or health coverage. If you fit into any one of these categories, you are a covered entity for purposes of Section 1557.

Coordinator & Grievance Procedure Applies to CEs with 15 or more employees. CE must designate an employee to serve as the entity’s compliance coordinator to investigate grievances. CE must adopt a grievance procedure. Must incorporate due process standards and provide for prompt and equitable resolution of grievances Appendix C of the final rule is a sample grievance procedure The grievance procedure and designated employee’s responsibilities must cover discrimination on the basis of race, color, national origin, sex, age, and disability. Refer to 45 C.F.R. § 92.7(a) and (b) for further information.

Nondiscrimination Requirements Covered entities may not: Segregate, delay, or deny services or benefits based on an individual’s race, color, or national origin. Delay or deny effective language assistance services to individuals with Limited English Proficiency (LEP) The term National Origin includes ancestry, place of origin (such as country), or physical, cultural, or linguistic characteristics of a national origin group.

Notice Requirements Covered entities must post: A notice advising individuals of their rights and of covered entities’ nondiscrimination obligations (or a nondiscrimination statement in small-sized documents). Taglines notifying individuals of the availability of language assistance services in at least the top 15 languages spoken by individuals with LEP in the relevant state or states (or 2 languages in small-sized documents). OCR provides guidance on top 15 languages by state. OCR translates nondiscrimination notice, statement, and taglines into the languages triggered by the state threshold. A link to the FAQs and table of the top 15 languages in each state is provided in the resources section of this presentation.

Nondiscrimination Notice Content Seven required elements in nondiscrimination notices – 45 C.F.R. § 92.8(a) CE does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities. CE provides appropriate auxiliary aids and services. CE provides language assistance services. How to obtain auxiliary aids and services and language assistance services. If applicable, name and contact information for compliance coordinator required in § 92.7(a). If applicable, availability of CE’s grievance procedure and how to file a grievance. How to file a discrimination complaint with OCR. Appendix A to the final rule contains a sample nondiscrimination statement.

Meaningful Access for LEP Individuals General Rule: covered entities shall 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. 92.201(a). OCR evaluation of compliance: Substantial weight given to nature and importance of the health program or activity and the particular communication at issue to the individual with limited English proficiency; and Take into account all other relevant factors including: Whether the covered entity has developed and implemented an effective written language access plan, appropriate to its circumstances.

Requirements for Language Assistance Services Language Assistance Services must be: Free of charge to the individual Accurate and Timely Protect Privacy and Independence of the individual Language Assistance Services include: Oral Interpretation (from Qualified Interpreter) Written Translation (from Qualified Translator) Taglines

Family and Friends, Bilingual/Multilingual Staff A covered entity may not rely on adult family/friends to interpret, except: Imminent threat to individual or public; or Specific request from individual, acceptance by family/friend, appropriate under the circumstances CE may only rely on a minor family member/friend when there is an imminent threat to the individual or public CE may not rely on staff members other than Qualified Bilingual/Multilingual staff to communicate directly with LEP individuals.

Video Remote Interpretation Requirements 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 and the participating individual’s face regardless of the individual’s body position; A clear, audible transmission of voices; and 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.

Definitions Related to LEP Individual with limited English proficiency means an individual whose primary language for communication is not English and who has a limited ability to read, write, speak, or understand English. National origin includes, but is not limited to, an individual’s, or his or her ancestor’s, place of origin or an individual’s manifestation of the physical, cultural, or linguistic characteristics of a national origin group. Taglines mean short statements written in non-English languages that indicate the availability of language assistance services free of charge.

LEP Definitions Qualified bilingual/multilingual staff means a member of a covered entity’s workforce who is designated by the CE to provide oral language assistance as part of the individual’s current assigned job responsibilities and who has demonstrated to the CE that he or 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.

LEP Definitions Qualified interpreter for an individual with limited English proficiency means 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, terminology and phraseology. Qualified translator means a translator who: (1) adheres 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.

Resources Section 1557 Final Rule: http://www.hhs.gov/civil-rights/for- individuals/section-1557/index.html HHS Website: www.hhs.gov/ocr LEP FAQs and charts of top 15 languages in each state: http://www.hhs.gov/civil-rights/for-individuals/section- 1557/1557faqs/top15-languages/index.html Translated taglines and other resources: http://www.hhs.gov/civil- rights/for-individuals/section-1557/translated-resources/index.html