Frequently Asked Questions Regarding New ACA Section 1557 Regulations

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1 RESPONSE TO WEBINAR: Frequently Asked Questions Regarding New ACA Section 1557 Regulations OVERVIEW Providers nationwide continue to have many questions about major language access changes under Section 1557 of the Affordable Care Act that went into effect in July. The new provisions apply to every health program or activity, any part of which receives Federal financial assistance. Below are questions submitted during our September webinar (recording; slide presentation), and responses as provided by our expert presenters Critical Measures President & CEO David Hunt, Business Associate Kalen Beck, and Oregon Health & Science University s Health Equity and Inclusion Manager Riikka Salonen. We hope that you find this information helpful! InDemand Interpreting is committed to supporting healthcare providers like you navigate language access and the law. Q&A Q There is a lot of buzz in the Deaf community regarding primary consideration with regard to access. If a Deaf patient prefers an onsite interpreter, must this be honored? How are providers able to discern between Deaf patients who don t like VRI so they claim it s ineffective in order to avoid it versus truly ineffective use of VRI? A Deaf and hard-of-hearing patients have every right to express their preferences when it comes to the use of a qualified medical interpreter. Further, the new Section 1557 regulations under the ACA require providers to give primary consideration to the choice of an aid or service requested by the individual with a disability. However, requiring providers to give primary consideration to the preferences of patients with disabilities does not mean that patients preferences should be the only consideration or that providers must adopt the patient s preferred accommodation. Providers are free to adopt any accommodation that will result in effective communication with the patient. In deciding on the preferred means of accommodation, the new Section 1557 regulations suggest that providers should consider one over-riding factor, which is: the

2 nature and importance of the health program or activity [that the patient is seeking to access] including the particular [type of] communication at issue. Where the particular communication at issue involves informed consent, a medical examination, a medical procedure (including labor and delivery), patient discharge instructions or end of life decision-making, providers may wish to consider in-person interpreters. Nationally, the Deaf and hard-of-hearing communities have raised many legitimate complaints about the shortcomings of Video Remote Interpreting (VRI) use in medical settings. In response to these complaints, the U.S. Department of Health and Human Services issued new standards for the use of video remote interpreting in its Section 1557 regulations. According to the final rule, Providers who provide a qualified medical interpreter through video remote interpreting shall provide: (1) 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; (2) 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; (3) A clear, audible transmission of voices; and (4) 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 Q Please comment on what it means to rely on an interpreter that the individual prefers. A Because the final decision about what type of qualified medical interpreter to provide to a given LEP or Deaf or Hard of Hearing patient ultimately resides with the provider, language access minorities are forced to rely on their providers decision about the most appropriate type of accommodation. If the type of accommodation that the provider selects fails to establish effective communication or meaningful access with the Deaf, Hard or Hearing or LEP patient and the patient suffered personal injury as a result, the patient could sue the physician under a breach of contract claim under the theory of detrimental reliance, explore a medical malpractice case or sue the physician under the federal language access laws (ADA, ACA but not Title VI of the Civil Rights Act of 1964.) Based on the new ACA Section 1557 regulations providers who receive federal funds for providing health services may not: Require an individual to provide his or her own interpreter. Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified interpreter immediately available. Rely on interpreters that the individual prefers when there are competency, confidentiality or other concerns. Rely on unqualified staff interpreters.

3 Use low-quality video remote interpreting services. Q At my hospital, we have providers who work with the hospital but not for the hospital. Our LEP patients are sent to these practices which do not have phone or qualified interpreters so the providers do not see the LEP patients. Their reasoning is that they are not federally funded. Is this Legal? A Limited English proficient (LEP) patients have language access rights under Title VI of the Civil Rights Act of This is true irrespective of whether the LEP patient is a U.S. citizen or not. LEP patients also have new language access rights (including the ability to sue their provider for failing to provide language access services) under the new Section 1557 regulations to the ACA. For their part, providers who accept federal funds (Medicare, Medicaid or other reimbursements from other federal health programs) have a legal duty to provide language access services such as oral interpreters and written translated materials to LEP patients. The only exception to this requirement is medical clinics which only accept Medicare Part B and do not accept any other form of federal reimbursement. Failure to provide language access services has been regarded as a form of national origin discrimination in cases that go all the way up to the United States Supreme Court in the Lau v. Nichols decision (U.S. 1974). The new Section 1557 regulations of the ACA make it clear that each of the following activities will be regarded as illegal: Requiring LEP patients to provide their own interpreters during medical encounters. Coercing LEP patients to decline language assistance services. Charging patients for language assistance services. Failing to provide adequate public/patient notice of non-discrimination provisions. Failing to provide appropriate interpreters and auxiliary aids and services, free of charge to ensure effective communication for individuals who are LEP or who have a disability. Q What guidance can you provide us, when a patient insists on a family member interpreting versus a qualified interpreter being used. Does the patient have this right under 1557 and how does the health facility protect themselves in these types of situations? Is a waiver an option/sufficient? A The new ACA Section 1557 regulations make it explicitly clear that LEP patients always have the right to refuse a provider s offer of a qualified medical interpreter. Similarly, patients have the right to ask family members or friends to serve as an interpreter for them in interactions with their health care providers. Even in situations like these however, the provider still has a legal duty to assure that meaningful access or effective communication is occurring and that the patient understands what they are being told. The use of medical interpretation waiver forms are of dubious legal validity. This is so for several reasons. Frequently, the waiver forms themselves are in English and are ineffective because the patient cannot understand them. Secondly, many providers do not use a qualified medical interpreter to interpret the contents of the waiver form. As a result, patients may not be aware that they are voluntarily giving up important legal rights. Third, even where a waiver form is used, it does not excuse the provider from establishing and maintaining effective communication with the patient.

4 Culturally competent physicians use a technique in these situations that is not only culturally sensitive but legally effective in preventing liability. They apologize to the patient for their (the doctor s) inability to speak the patient s language! Then they tell the patient that they want to understand every word that the patient has to tell them about their condition. But, for the physician to be confident that they have understood the patient correctly, they must use a qualified medical interpreter. Tell the patient that they are welcome to have any family member or friend remain in the exam room for support but send for an interpreter. Be sure to document the name of the interpreter, the language spoken and the content of the conversation in the patient s medical record. To assure that the patient understands what is being said to them, physicians should also employ the teach-back method asking the patient to repeat back, in their own words, their understanding of their diagnosis and treatment plan. Use of the teachback method is a best practice with any patient not simply LEP or Deaf or Hard of Hearing patients. Q Our developmental pediatricians do not wish to use video on demand due to the certain diagnoses they treat, however, the services available to us do not utilize certified interpreters. Do we have options or are we covered since we are hiring from a service? A The new ACA Section 1557 regulations require providers to use qualified medical interpreters. There is no exception for over the phone or video remote interpretation agencies. Consequently, contract interpretation agencies must also comply with the qualified medical interpretation requirement. Hiring from a service, whether by a hospital, a medical clinic or an individual provider will not exempt the provider or hospital system from liability if they use contract interpreters that are not qualified or certified. As a result, providers should insert a clause in their contracts with interpretation agencies or vendors that requires the use of qualified medical interpreters. If local agencies and contract vendors cannot meet that contractual requirement, providers should look at some of the larger, national language access firms. The regulations do not require that you rely on only certified interpreters. Below is the ACA Section 1557 Rule definition of a qualified interpreter: Qualified interpreter for an individual with a disability. (1) A qualified interpreter for an individual with a disability means an interpreter who via a remote interpreting service or an on-site appearance: (i) Adheres to generally accepted interpreter ethics principles, including client confidentiality; and (ii) is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, terminology and phraseology. (2) For an individual with a disability, qualified interpreters can include, for example, sign language interpreters, oral transliterators (individuals who represent or spell in the characters of another alphabet), and cued language transliterators (individuals who represent or spell by using a small number of handshapes).

5 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. The rule splits the definition of qualified interpreter into two different definitions a qualified interpreter for an individual with limited English proficiency and a qualified interpreter for an individual with a disability. This separation recognizes the different qualifications needed for interpreting for each set of individuals. The qualifications for both sets of interpreters recognize the importance of the interpreter s ability to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, terminology and phraseology. Q I had a physician ask me today if I speak Hindi as my native language and the patient speaks Hindi, can I not speak to my patient in my native language of Hindi? Or do these new rules only apply to providers that don t speak that patient s native language, therefore requiring them to use a qualified interpreter? In other words, can I interpret for myself, but not interpret for other providers? A Response: Section 1557 Ruling States: Language assistance services may include, but are not limited to: (1) Oral language assistance, including interpretation in non-english languages provided in-person or remotely by a qualified interpreter for an individual with limited English proficiency, and the use of qualified bilingual or multilingual staff to communicate directly with individuals with limited English proficiency; (2) Written translation, performed by a qualified translator, of written content in paper or electronic form into languages other than English; and (3) Taglines. Qualified bilingual/multilingual staff means a member of a covered entity s workforce who is designated by the covered entity to provide oral language assistance as part of the individual s current, assigned job responsibilities and who has demonstrated to the covered entity that he or she: (1) 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 (2) is able to effectively, accurately, and impartially communicate directly with individuals with limited English proficiency in their primary languages. The explanation in the Federal Registered added that an individual who meets the definition of qualified bilingual/multilingual staff does not necessarily qualify to interpret or translate for individuals with limited English proficiency within the meaning of this rule but can provide direct communication in that language. Your provider would not be interpreting; but rather would be providing direct communication to the patient in Hindi. He would be able to do so if he has demonstrated to your organization that he meets the above two criteria.

6 Q What would you do if one of the languages most frequently used is an indigenous language and there is no written language and in particular extremely difficult to find interpreters for that language. Example: MAM dialect. A As our population as a nation becomes more diverse, we are seeing an increase in Languages of Limited Diffusion (LLD). Languages of Limited Diffusion are spoken by relatively small numbers of people, in contrast to languages that are spoken in several different countries and are widely taught as foreign languages. An LLD may be the official language of a small country, such as Laos or Estonia, or it may be a minority or indigenous language, such as Hmong or Navajo. We recognize that many of these LLD languages do not have a written form especially as dialects impact the navigation of the linguistic construct of the base language. The Department of Health and Human Services has translated a sample of the following in 64 different languages (including many LLD languages): Notice of Nondiscrimination Statement of Nondiscrimination Tagline The link can be found here: Should you have a language that is one of the top 15 in your State s service area that is not listed above, you would need to provide that translation service through your translation vendor. Mam, a Mayan language, does have a written form and your translation service vendor should be able to provide a certified translation of these notices. Q Does the ruling only apply to clinical aspect of interpreting or does it also apply to registering a patient or talking to them about their bill? A The new Section 1557 regulations to the ACA apply to every aspect of a patient s care by a provider not just the clinical aspects. However, the regulations acknowledge that a provider s duty to establish meaningful access or effective communication is, in part, situational. Therefore, the Section 1557 regulations explicitly state that there is one over-riding factor for determining whether providers have established meaningful access and that is: the nature and importance of the health program or activity, including the particular communication at issue, to the LEP patient. Communications that are clinical in nature such as a medical examination, informed consent discussions, patient discharge instructions, communications during labor and delivery or during end of life decision-making pose the greatest risk to the LEP patient and therefore impose a greater legal duty on the provider to use qualified medical interpreters. In addition to the one over-riding factor test just mentioned, seven additional factors should also be considered in determining providers compliance with the new Section 1557 regulations: (1) The length, complexity and context of the communication (2) The prevalence of the language in which the LEP patient communicates (3) The frequency with which the provider encounters that language (4) Whether the provider has explored the patient s preference for a particular language service

7 (5) Cost of that service and opportunities to save money (6) All resources available to the provider (7) Whether the provider has developed & implemented a language access plan. Because important health information about the patient s condition is collected during the patient registration process, including information about their primary oral language and preferred written language, having a qualified medical interpreter present during patient registration would likely be a higher priority than having a qualified medical interpreter present during discussions about the patient s bill. However, to the extent that discussions about the patient s bill impact their legal rights, it could be argued that a qualified medical interpreter would be needed for those discussions as well. Over the phone interpreters or VRI interpreters might be used in each of these situations in lieu of an in-person interpreter. Q For an acute care hospital, what is the posting requirement? Where do the postings have to be? A See the highlighted section of the Notice Requirement. This part indicates where and what size the posting should be. SECTION 1557 RULE STATES: 92.8 Notice requirement. (a) Each covered entity shall take appropriate initial and continuing steps to notify beneficiaries, enrollees, applicants, and members of the public of the following: (1) The covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities; (2) The covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when such aids and services are necessary to ensure an equal opportunity to participate to individuals with disabilities; (3) The covered entity provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with limited English proficiency; (4) How to obtain the aids and services in paragraphs (a)(2) and (3) of this section; (5) An identification of, and contact information for, the responsible employee designated pursuant to 92.7(a), if applicable; (6) The availability of the grievance procedure and how to file a grievance, pursuant to 92.7(b), if applicable; and (7) How to file a discrimination complaint with OCR in the Department.

8 (b) Within 90 days of the effective date of this part, each covered entity shall: (1) As described in paragraph (f)(1) of this section, post a notice that conveys the information in paragraphs (a)(1) through (7) of this section; and (2) As described in paragraph (g)(1) of this section, if applicable, post a nondiscrimination statement that conveys the information in paragraph (a)(1) of this section. (c) For use by covered entities, the Director shall make available, electronically and in any other manner that the Director determines appropriate, the content of a sample notice that conveys the information in paragraphs (a)(1) through (7) of this section, and the content of a sample nondiscrimination statement that conveys the information in paragraph (a)(1) of this section, in English and in the languages triggered by the obligation in paragraph (d)(1) of this section. (d) Within 90 days of the effective date of this part, each covered entity shall: (1) As described in paragraph (f)(1) of this section, post taglines in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant State or States; and (2) As described in paragraph (g)(2) of this section, if applicable, post taglines in at least the top two languages spoken by individuals with limited English proficiency of the relevant State or States. (e) For use by covered entities, the Director shall make available, electronically and in any other manner that the Director determines appropriate, taglines in the languages triggered by the obligation in paragraph (d)(1) of this section. (f) (1) Each covered entity shall post the notice required by paragraph (a) of this section and the taglines required by paragraph (d)(1) of this section in a conspicuously-visible font size: (i) In significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and members of the public, except for significant publications and significant communications that are small-sized, such as postcards and tri-fold brochures; (ii) In conspicuous physical locations where the entity interacts with the public; and (iii) In a conspicuous location on the covered entity s Web site accessible from the home page of the covered entity s Web site. (2) A covered entity may also post the notice and taglines in additional publications and communications. (g) Each covered entity shall post, in a conspicuously-visible font size, in significant publications and significant communications that are small-sized, such as postcards and tri-fold brochures: (1) The nondiscrimination statement required by paragraph (b)(2) of this section; and (2) The taglines required by paragraph (d)(2) of this section. Note: The difference between (f) and (g) is that paragraph (f) is applicable to the top 15 non-english languages in the state in which services are provided. In paragraph (g), these publications only need to have notices in your top 2 non-english languages.

9 Q What do you consider as significant publications for taglines? A The notice must also be posted in significant publications and significant communications targeted to beneficiaries, enrollees, applicants and members of the public. The final rule clarifies that significant communications and significant publications includes vital documents (as listed in the HHS Guidance). It distinguishes that translation of vital documents addresses how an entity can meet its Title VI requirements per the HHS LEP Guidance. The 1557 rule s use of significant communications and significant publications refers to documents in which covered entities are required to post the notice of individuals rights and taglines. The notice is not required in small-sized communications such as postcards and tri-fold brochures. SECTION 1557 RULE: 92.8 Notice requirement. (a) Each covered entity shall take appropriate initial and continuing steps to notify beneficiaries, enrollees, applicants, and members of the public of the following: (1) The covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities; (2) The covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when such aids and services are necessary to ensure an equal opportunity to participate to individuals with disabilities; (3) The covered entity provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with limited English proficiency; (4) How to obtain the aids and services in paragraphs (a)(2) and (3) of this section; (5) An identification of, and contact information for, the responsible employee designated pursuant to 92.7(a), if applicable; (6) The availability of the grievance procedure and how to file a grievance, pursuant to 92.7(b), if applicable; and (7) How to file a discrimination complaint with OCR in the Department. (b) Within 90 days of the effective date of this part, each covered entity shall: (1) As described in paragraph (f)(1) of this section, post a notice that conveys the information in paragraphs (a)(1) through (7) of this section; and (2) As described in paragraph (g)(1) of this section, if applicable, post a nondiscrimination statement that conveys the information in paragraph (a)(1) of this section. (c) For use by covered entities, the Director shall make available, electronically and in any other manner that the Director determines appropriate, the content of a sample notice that conveys the information in paragraphs (a)(1) through (7) of this section, and the content of a sample nondiscrimination statement

10 that conveys the information in paragraph (a)(1) of this section, in English and in the languages triggered by the obligation in paragraph (d)(1) of this section. (d) Within 90 days of the effective date of this part, each covered entity shall: (1) As described in paragraph (f)(1) of this section, post taglines in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant State or States; and (2) As described in paragraph (g)(2) of this section, if applicable, post taglines in at least the top two languages spoken by individuals with limited English proficiency of the relevant State or States. (e) For use by covered entities, the Director shall make available, electronically and in any other manner that the Director determines appropriate, taglines in the languages triggered by the obligation in paragraph (d)(1) of this section. (f) (1) Each covered entity shall post the notice required by paragraph (a) of this section and the taglines required by paragraph (d)(1) of this section in a conspicuously-visible font size: (i) In significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and members of the public, except for significant publications and significant communications that are small-sized, such as postcards and tri-fold brochures; (ii) In conspicuous physical locations where the entity interacts with the public; and (iii) In a conspicuous location on the covered entity s Web site accessible from the home page of the covered entity s Web site. (2) A covered entity may also post the notice and taglines in additional publications and communications. (g) Each covered entity shall post, in a conspicuously-visible font size, in significant publications and significant communications that are small-sized, such as postcards and tri-fold brochures: (1) The nondiscrimination statement required by paragraph (b)(2) of this section; and (2) The taglines required by paragraph (d)(2) of this section. (h) A covered entity may combine the content of the notice required in paragraph (a) of this section with the content of other notices if the combined notice clearly informs individuals of their civil rights under Section 1557 and this part. Q How are TV & Newspaper advertisements handled for the notices? Do we need to include the notice and 15 taglines in those advertisements posted for our health programs? A Notice Requirement, 92.8 of the ACA Section 1557 states that each covered entity must take initial and continuing steps to notify beneficiaries, enrollees, applicants and members of the public of factors including: the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities; the covered entity provides appropriate auxiliary aids and services (including qualified interpreters and information in alternate formats);

11 the covered entity provides language assistance services (including translated documents and oral interpretation); how to obtain the auxiliary aids and services, materials in other formats, translated materials and interpreters; the contact information for a responsible employee (only for entities with 15 or more employees); the availability of a grievance procedure and how to file a grievance; and how to file a discrimination complaint with OCR.48 The notice must also be posted in significant publications and significant communications targeted to beneficiaries, enrollees, applicants and members of the public. The final rule clarifies that significant communications and significant publications includes vital documents (as listed in the HHS Guidance). The 1557 rule s use of significant communications and significant publications refers to documents in which covered entities are required to post the notice of individuals rights and taglines. The notice is not required in small-sized communications such as postcards and tri-fold brochures. Q We recently posted patient rights signs throughout our hospitals...in regards to this specific topic our poster notes: You (patient) have the right to communication without language, visual, hearing or learning barriers. A The final rule requires all covered entities (providers who participate in federal health programs and receive federal reimbursement) to post a notice of consumer civil rights; covered entities with 15 or more employees are also required to have a civil rights grievance procedure and an employee designated to coordinate compliance. Under the new requirement, covered entities are required to post information telling consumers about their rights and telling consumers with disabilities and consumers with limited English proficiency (LEP) about the right to receive communication assistance. Providers are also required to post taglines in the top 15 languages spoken by individuals with LEP in the states in which the covered entity operates, advising consumers of the availability of free language assistance services. To minimize burden on covered entities, OCR has prepared a model notice and model nondiscrimination statement that covered entities can use if they choose to do so. Covered entities are free to create their own notices or statements if they wish. However, the best advice is never to stray too far from the DHHS suggested or model text. For more information about translated notices and taglines, visit

12 Q Will we be required to include information about the new ACA Section 1557 language access regulations [in our communications with patients]? A Yes. All providers must inform their patients of their language access rights under federal law. The first paragraph in Section Notice Requirement indicates what you need to include in your notices: SECTION 1557 RULE STATES: 92.8 Notice requirement. (a) Each covered entity shall take appropriate initial and continuing steps to notify beneficiaries, enrollees, applicants, and members of the public of the following: (1) The covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities; (2) The covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when such aids and services are necessary to ensure an equal opportunity to participate to individuals with disabilities; (3) The covered entity provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with limited English proficiency; (4) How to obtain the aids and services in paragraphs (a)(2) and (3) of this section; (5) An identification of, and contact information for, the responsible employee designated pursuant to 92.7(a), if applicable; (6) The availability of the grievance procedure and how to file a grievance, pursuant to 92.7(b), if applicable; and (7) How to file a discrimination complaint with OCR in the Department. Q Do these rules apply to international patients? A Under Title VI of the Civil Rights Act of 1964, Limited English Proficient Patients do not have to be United States citizens to have language access rights under American law. Title VI specifically uses the word person not citizen to describe who has language access rights. Consequently, the new ACA Section 1557 rules apply to both American citizens and persons who are international patients.

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