The U.S. Department of Health and Human Services (HHS) has announced a proposed rule that prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain federally funded health programs and activities.
This proposed rule is a Biden Administration update of Section 1557 of the Affordable Care Act (ACA). The proposed rule is aimed at restoring and strengthening civil rights protections for patients and consumers, including those with limited English proficiency and the Deaf and Hard of Hearing. The Trump Administration’s 2020 version of the rule implementing Section 1557 limited its scope and power to cover fewer programs and services.
Specifics of the New Rule with Respect to Language Access that Healthcare Organizations Should be Aware of:
- Requires covered entities to have Section 1557 policies and staff training.
The proposed rule requires covered entities to implement Section 1557 anti-discrimination policies and procedures to give staff clear guidance on the provision of language assistance services for limited English proficient (LEP) individuals, and effective communication and reasonable modifications to policies and procedures for people with disabilities. Covered entities will also be required to train relevant staff on these policies and procedures. These requirements will help improve compliance and reduce the need for enforcement. Learn how LanguageLine’s Implementation Team can help.
- Requires covered entities to provide notice of the availability of language assistance services and auxiliary aids and services.
The proposed rule requires covered entities to provide notice of the availability of language assistance services and auxiliary aids and services in English and at least the 15 most common languages spoken by LEP persons of the relevant state or states. These notices must also be provided in alternate formats for individuals with disabilities who require auxiliary aids and services to ensure effective communication. Covered entities would be required to provide these notices on an annual basis, upon request, in prominent physical locations, and in a conspicuous location on their websites. The proposed rule also allows individuals to opt-out of receiving an individualized notice on an annual basis.
- Clarifies that nondiscrimination requirements apply to health programs and activities provided through telehealth services.
The proposed rule specifically addresses nondiscrimination in the provision of health programs and activities through telehealth services. This provision clarifies that covered entities have an affirmative duty to not discriminate in their delivery of such services through telehealth. This duty includes ensuring that such services are accessible to individuals with disabilities and providing meaningful program access to LEP individuals. Such services would include communications about the availability of telehealth services, the process for scheduling telehealth appointments (including the process for accessing on-demand unscheduled telehealth calls), and the telehealth appointment itself.
Learn how LanguageLine Telehealth can add a live, professional LanguageLine Certifiedmedical interpreter to a telehealth session in over 240 languages, 24/7.
- Places specific requirements on the use of machine translation in health programs and activities.
The rule proposes regulatory language requiring a covered entity that uses machine translation to have translated materials reviewed by a qualified human translator when the underlying text is critical to the rights, benefits, or meaningful access of an LEP individual; when accuracy is essential; or when the source documents or materials contain complex, non-literal, or technical language. HHS is seeking comments on the use of machine translation in health programs and activities.
- Puts covered entities on notice of nondiscrimination requirements’ application to use of clinical algorithms.
The proposed rule states that a covered entity must not discriminate against any individual on the basis of race, color, national origin, sex, age, or disability through the use of clinical algorithms in its decision-making. This provision is not intended to hinder the use of clinical algorithms; but to prevent discrimination given the recent increasing reliance on clinical algorithms in health care decision-making.
How to Comment
The proposed rule seeks comment on a variety of issues to better understand individuals’ experiences with health care discrimination and covered entities’ experiences in complying with federal civil rights laws. The comment period will be open for 60 days for members of the public to provide comments on the proposed rule.
An informational webinar will be held August 31 from 2-4 p.m. ET. To participate, you must register in advance at https://www.zoomgov.com/meeting/register/vJIsfu-rqzksEl2T8gUp_lDrWBqkU0223CY
You can submit comments, identified by RIN 0945-AA17, electronically through https://www.regulations.gov, or by mail or via hand delivery or courier to the following address only: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: 1557 NPRM (RIN 0945-AA17), Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue SW., Washington, DC 20201.
LanguageLine Can Help
LanguageLine offers a full suite of implementation services and staff training that enable healthcare entities to remain compliant under all circumstances, including the proposed rule. We also offer interpretation for telehealth sessions on all major platforms. Additionally we provide translation of healthcare notices and patient support materials, as well as Braille and large print services to ensure accessibility.
We invite you to contact us to learn more.