The Final Rule

The A.C.A and Section 1557

The Affordable Care Act (ACA) is a healthcare reform law, introduced during theObama administration. The aim of that bill was said to focus on making healthcare insurance both more affordable and accessible to low-income families, while also lowering the economic cost of healthcare provision overall through supporting new ways of providing medical care. 

Section 1557 is the primary discrimination protection provision under A.C.A and it laid out specific grounds upon which individuals seeking care cannot be denied, discriminated against, or discouraged from seeking care. These include race, color, national origin, sex, age, and disability. 

It’s also worth noting that the original rule was worded to apply to any health program or activity, any part of which receives funding from the Department of Health and Human Services (HHS), such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers’.

The Final Rule: What’s Changed?

By now, you may have read the headlines about the Office of Civil Rights (OCR) of the Department of Health and Human Services (DHHS) rolling back protections from discrimination for certain individuals seeking medical care. Most notably the transgender community, women, and those with Limited English Proficiency (LEP). While all of these groups deserve the same protection against discrimination, today we’re focusing on the not much talked about impact on America’s LEP population.

While numerous protections have been eliminated or changed, this Final Rule has also drastically reduced the number of ‘covered entities’, or providers that have to comply with these anti-discrimination policies. In effect, eliminating all of the protections offered by Section 1557 for people accessing care through Healthcare Insurers and non-directly HHS funded providers. This will also affect those with disabilities who, under 1557 have a right to free, fast, and appropriate communication and accessibility aids; such as video remote interpreting (VRI) services, among other provisions.

LEP Individuals

In the United States today, there are up to 25 million LEP persons, who, under the A.C.A have been guaranteed free and prompt access to appropriate language assistance services in order to allow them to fully engage with their healthcare providers and receive the same level of medical care as their English proficient counterparts. This includes the availability of high-quality video remote interpreting services, with fast connection and where the interpreter can be clearly seen. Learn more about why Video Remote Interpreting is important in our recent blogs: Coronavirus and Remote Interpreting and ASL Interpreters: You are Essential.

This new Final Rule entirely removes the requirement for video remote interpreting, instead focusing only on audio interpreting services. It also changes the wording, leaving it up to each provider to decide whether providing interpreting services is really required based on a new four-point consideration list that includes whether providing the service may be too costly. Obviously, any provision that allows a healthcare provider to consider cost when deciding whether to provide appropriate access to their services is outrageous and, frankly, dangerous for LEPs across the country.

When people do not feel heard, are not able to adequately communicate their needs, and have their wishes respected, they are far less likely to seek care if and when they need it. By rolling back protections for LEPs, as well as some patients with disabilities, this will fundamentally damage the relationship between these vulnerable groups and the healthcare system.

Notice And Taglines Requirements

The 2016 rule also required all covered entities to include notices of the non-discrimination protections as well as taglines in the top 15 non English languages in their state alongside their English language taglines, ensuring that LEPs across their state would also have easy access to crucial information. 

In practice, providers had to post this information on their websites, in direct communications, and display it inside their facilities. Smaller notices like postcards only had to provide information in English and the top two non-English languages. 

The Final Rule has completely removed any requirements for medical providers to issue non-English notices and taglines in their publications of important information. In addition to the rollback of the language services provision, the changes here also include considerations for the associated costs of providing accessibility to LEP patients. According to the Health Affairs Blog, the change comes amid many ‘objections from commenters who argued that civil rights protections cannot be outweighed by compliance costs for covered entities.

Why This Matters

If the COVID19 pandemic has taught us anything, it should be that communication of information to the public is vital to keeping us safe and healthy. Only by continually providing everyone in our communities with the information that healthcare professionals believe we need to know, can we hope to minimize the risks of infectious diseases, lessen preventable deaths, and lower the costs of medical care overall. Keeping in mind that LEPs are people who face difficulties in speaking, understanding, reading or writing English, forcing them to communicate in a language they struggle with, is both dangerous for them and can have grave public health consequences. 

By making the protection provisions in Section 1557 deliberately more vague, the Final Rule leaves too much room for interpretation of anti-discrimination protections. There should be no ambiguity as to a person’s right to language and communication services in healthcare. By doing so, the Final Rule places barriers in the way of literally millions of American residents receiving accessible health care information and reliable medical care that would enable them to remain healthy and keep their families, and our entire nation, safe. 

At PGLS, we are committed to aiding healthcare providers to continue to put patients’ needs above cost considerations by providing equal access to medical care for LEPs and disabled patients alike. Contact us today, to find out more.