1. Language Access and ACA Section 1557 Mara Youdelman, Managing Attorney (DC Office) youdelman@healthlaw.org February 5, 2016

2. National Health Law Program NHeLP protects and advances the health rights of low income and underserved individuals The oldest non-profit of its kind, NHeLP advocates, educates and litigates at the federal and state level Offices in Washington, D.C.; Los Angeles, CA; Carrboro, NC 2

3. Demographics Over 59 million people speak a language other than English at home, over 20% of the population Over 25 million (9% of the population) speak English less than “very well,” and may be considered LEP 8.5 million children under age 19 live in a household with at least one LEP parent SOURCE: American Community Survey, 2011, Table DP02, SELECTED SOCIAL CHARACTERISTICS IN THE UNITED STATES, 2009-2013 American Community Survey 5-Year Estimates; Table S1603, CHARACTERISTICS OF PEOPLE BY LANGUAGE SPOKEN AT HOME, 2009-2013 American Community Survey 5-Year Estimates, available at http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml.http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml

4. Treating LEP Patients 80% of hospitals encounter LEP patients frequently – 63% daily/weekly; 17% monthly 81% of general internal physicians treat LEP patients frequently – 54% at least a few times a week; 27% a few times per month 84% of FQHCs provide clinical services daily to LEP patients – 45% see more than ten patients a day; 39% see from one to 10 LEP patients a day SOURCE: Reports commissioned by NHeLP from AHA/HRET, ACP, NACHC; available at www.healthlaw.org www.healthlaw.org

5. “Qualified” Interpreter – NPRM An interpreter who adheres to generally accepted interpreter ethics principles interprets effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary Demonstrates proficiency in, and has above average familiarity with speaking or understanding, both spoken English and at least one other spoken language Name of presentation goes in footer5

6. “Qualified Interpreter” – Recommendations National certification = qualified Include definition of qualified translator Healthcare entity must verify competency of interpreters and translators Name of presentation goes in footer6

7. Use of Family Members/Minors – NPRM Prohibits use of minors except in emergencies Prohibits use of accompanying adults except in emergencies or upon patient request RECOMMENDATION: Covered entities should use own interpreters as back-up to ensure accompanying adult is competent Name of presentation goes in footer7

8. Medicare Part B – NPRM Expands exclusion of Medicare Part B providers to compliance with 1557 Based on longstanding misinterpretation of Title VI – contract of insurance, direct payment RECOMMENDATION: Nothing in 1557 statutory language permits applying this exemption to 1557 so apply it equally to Medicare Part B providers Name of presentation goes in footer8

9. Data Collection Recommendations Require robust data collection by covered entities Include race, ethnicity, language, disability status, sex, sexual orientation and gender identity collect this data in compliance with ACA § 4302 including disaggregated data; provide this data to HHS at least yearly, in a form and manner determined by the Secretary, to document compliance with this Part; and disclose this data publicly as determined by the Secretary. Name of presentation goes in footer9

10. Notices New requirement for employers with at least 15 employees to 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 Name of presentation goes in footer10

11. Notices – Recommendations Require posting of notice including Translated in top 3 languages Taglines Taglines – use top 15 by state (NPRM – top 15 nationally) Name of presentation goes in footer11

12. Translation of Written Materials No thresholds in NPRM “Vital” versus “significant” documents – need clarification Recommendations: require thresholds – 5%/1,000 Enhanced obligations for HHS, state Medicaid/CHIP agencies, FFM, SBM, QHPs – require translation when 5%/500 Name of presentation goes in footer12

13. Factors LEP Guidance – 4 factors to determine compliance with Title VI (#/proportion of those eligible to be served, frequency of contact, nature/importance of activity, costs/resources) NPRM – 5 factors Takes out frequency Adds in length/complexity Splits costs and resources into 2 separate factors Recommendations – add back in “frequency” as a specific consideration, keep costs & resources together Name of presentation goes in footer13

14. Conclusion Section 1557 reinforces longstanding protections and implements new nondiscrimination provisions for healthcare to protect limited English proficient patients/consumers Reinforces recognition that one goal of ACA is to reduce healthcare disparities Devil is in the details – need strong final regulations & strong oversight/enforcement Name of presentation goes in footer14

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