1 Major Changes to the ACA How Will They Affect Your Language Access Program?
2 Major Changes to the ACA E-book Series: PART 1: What Are the New Regulations? PART 2: How to Comply With the New Regulations? PART 3: Leveraging Technologies as Part of Your Compliance Strategy
3 Major Changes to the ACA How Will They Affect Your Language Access Program? PART 1: What are the New Regulations? AUTHORED BY: David B. Hunt, J.D. - President and CEO, Critical Measures
4 This e-book will cover: 1. Understand the new ACA anti-discrimination regulations. 2. Understand how these regulations will impact your language access program 3. Understand how the new regulations will promote the use of qualified medical interpreters and translators and substantially restrict the use of unqualified interpreters (such as untrained bilingual staff, adult family members, friends and minor children)
5 Overview of Federal Language Access Laws
6 MAJOR CHANGES TO THE ACA Title VI of the Civil Rights Act of 1964 Prevents federal money from being used to support programs that discriminate on the basis of race, color or national origin. Providers covered by Title VI if they receive federal funds (Medicare, Medicaid, etc.) Exception: Medicare Part B clinics Requires providers to take reasonable steps to provide meaningful access to federal health programs. U.S. citizenship not required. ( Persons vs citizens) Failure to provide free language access to LEP regarded as national origin discrimination. Lau v. Nichols, (U.S. 1974) No private right to sue for language access violations. (Alexander v. Sandoval, (U.S. 2001, Scalia) Right to select method of language assistance belongs to M.D.
7 MAJOR CHANGES TO THE ACA Americans With Disabilities Act (ADA) Section 504 of the Rehabilitation Act of 1973 requires recipients of federal financial aid to be equally accessible to handicapped persons. Duty to ensure effective communication if 15+ ees. Titles II and III of the Americans with Disabilities Act prohibit discrimination against persons with disabilities in places of public accommodation. (No employer size limit.) Both of these laws harmonized by the ADA Amendments Act (ADAAA,2008). Exceptions: must accommodate unless undue burden or fundamental alteration of program. (Note: Fogari decision) Private cause of action allowed (unlike Title VI). Legal duty extends beyond patient. Providers have discretion but primary consideration should be given to patient s preferred method of accommodation. (Title II standard is higher than Title III)
8 MAJOR CHANGES TO THE ACA Section 1557 of the Affordable Care Act (ACA) Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, disability and age by: Any health program/activity that receives federal funding Includes health insurance marketplaces and all plans offered by issuers that participate in those marketplaces First federal civil rights law to prohibit sex discrimination in health care. (Impacts LGBTQ, sexual identity, transgendered) Excludes Medicare Part B providers. No employer size restriction. Final rule little different from proposed rule in content. Gives LEP private right to sue under ACA (not Title VI) Creates major changes in the law of language access Effective date: July 18, (Except for health plans January 1, 2017)
9 MAJOR CHANGES TO THE ACA Enforcement of the New ACA Regulations Enforcement mechanisms under Title VI, Title IX, the Age Act and Section 504 apply to violations of Section 1557 Enforcement agency: OCR (not DOJ). OCR authorized to conduct compliance reviews and complaint investigations as well as to provide technical assistance and guidance. OCR may consider conducting unannounced onsite compliance reviews Covered entities required to keep records, submit compliance reports to OCR, name a designated official to be responsible for compliance. Noncompliance could result in suspension of, termination or of refusal to grant or continue Federal financial assistance or a referral to DOJ with recommendation to bring legal proceedings. Private right of action and compensatory damages are available for violations of Section 1557 regulations. Note applicability of Civil Rights Attorney s Fees Act of Violations by one hospital in a system may occasion remedial action by the entire system.
10 Final Rules Are Federal Regulations Not Guidance
11 MAJOR CHANGES TO THE ACA Final Rules Are Federal Regulations Not Guidance At the federal level, the law of language access has been stable for some time. Last major change was DHHS Guidance Memo dated August, 2003 The new federal section 1557 ACA rules will become federal regulations, which, legally, are more authoritative than mere guidance provisions. The major language access provisions of section 1557 of the ACA require the use of qualified interpreters and significantly restrict the use of untrained family members and friends, minor children and untrained bilingual staff as medical interpreters. Making these new rules federal regulations (versus guidance) increases their authority and helps ensure their longevity.
12 New Language Access Changes for LEP Patients Under Section 1557 of The ACA
13 MAJOR CHANGES TO THE ACA Section 1557 of the ACA - Definitions Definition of LEP: An individual whose primary language for communication is not English [is LEP] if the individual has a limited ability to read, write, speak or understand English. Defines national origin not only as an individual s place of origin but also his/her ancestor s place of origin. Further, national origin also includes the manifestations of physical, cultural or linguistic characteristics of a national origin group. Contains specific definitions of the terms qualified interpreter, qualified translator and qualified bilingual/multilingual staff. Definition of a qualified interpreter is different for LEP and Deaf and Hard of Hearing patients. RESULT: Different qualifications are required to interpret for these different types of patients.
14 Final rule significantly expands the universe of patients to whom a legal duty to provide language access is owed. 1. Discrimination on the basis of association banned. (Language access duty extends to family members, spouses & same sex partners.) 2. Requires covered entities to take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered.
15 Importance of Eligible to be served. With regard to the scope of language services an entity must provide, the final rule replaced the phrase that [an entity] serves or encounters with eligible to be served or likely to be encountered. This underscores the significance of an entity not just serving those who come through its doors but having a responsibility to serve those eligible to be served. If an entity fails to provide language services in order to discourage LEP patients from seeking services from the entity, the entity could be in violation of section 1557 if LEP individuals in the community are eligible to be served by the entity. BOTTOM LINE: Know the changing language needs of your market and develop (language access) plans to meet them.
16 MA JO R CHA NG E S TO THE A CA Qualified Interpreters REQUIRED Existing federal regulations require the use of COMPETENT interpreters. The new, proposed ACA regulations require the use of QUALIFIED interpreters
17 MAJOR CHANGES TO THE ACA Qualified Interpreter DEFINED Under the final ACA regulations a qualified interpreter is defined as: An individual who adheres to interpreter ethics and client confidentiality requirements, and who, via a remote interpreting service or in-person appearance, Has demonstrated language proficiency and the ability to interpret effectively, accurately and impartially including specialized medical terminology Presumably, to be a qualified interpreter, one must first have gone through some qualification process. Above-average familiarity with speaking or understanding a language other than English does not suffice
18 The Bottom Line By moving the legal standard from competent interpreters to qualified interpreters, DHHS is increasing the standard of care and legal duty owed to LEP and Deaf and Hard of Hearing patients. Providers will bear the financial burden of increasing the professionalism of their language access services. Healthcare organizations must now pressure physicians and nurses to actually use qualified interpreters instead of untrained family members and friends, minor children and bilingual staff.
19 Final ACA Regs Specifically Restrict: The use of minor children as medical interpreters The use of adult family members and friends as medical interpreters The use of bilingual staff without formal training as medical interpreters
20 Restrictions On Minor Children as Medical Interpreters EXCEPTION: Minor children may only be used as medical interpreters in an emergency involving an imminent threat to the safety or welfare of an individual or the public where no qualified interpreter is immediately available.
21 Restrictions on the Use of Adult Family Members & Friends as Medical Interpreters Providers may not use adult family members or friends as medical interpreters unless: 1. There is an emergency involving an imminent threat to the safety or welfare of the LEP patient where no qualified interpreter is immediately available, or 2. Where the LEP patient specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance and reliance on that adult for assistance is appropriate under the circumstances
22 Restrictions On the Use Of Untrained Bilingual Staff as Medical Interpreters RULE: Providers shall not rely on staff other than qualified bilingual/multilingual staff to communicate directly with LEP patients. Definition of bilingual/multilingual staff: A member of the provider s workforce who is designated to provide oral language assistance as part of the individual s current, assigned job responsibilities and who has demonstrated 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 LEP patients in their primary languages.
23 New Section 1557 Regs Also Require the Use of Qualified Translators RULE: Providers must use qualified translators when translating written content in paper or electronic form. Definition of a Qualified Translator : One who adheres to generally accepted translator ethics principles, including client confidentiality; 1. Has demonstrated proficiency in writing and understanding both written English and at least one other written non-english language; and 2. Is able to translate effectively, accurately, and impartially to and from such language(s) using any necessary specialized vocabulary, terminology and phraseology
24 In Short: Language services must be provided: Free of charge, accurately and in a timely manner and protect the privacy and independence of the limited English proficient patient.
25 MAJOR CHANGES TO THE ACA Up Next in our 3 Part e-book Series: How to Comply with New Regulations Understand how to become compliant with new ACA language access regulations that take effect on July 18, 2016
26 Video Remote Interpreting (VRI) from InDemand Interpreting 26 Instantly Connect to Experienced Medical Interpreters 24/7, 365 days a year, in over 200 languages. InDemand provides instant access to high-quality Video Remote Interpreting (VRI) for limited English proficient (LEP) and Deaf patients at the touch of a button. Just select the patient s preferred Language, and within seconds a medically trained interpreter will be online to assist.
27 ABOUT THE AUTHOR David B. Hunt, J.D. CRITICAL MEASURES President and CEO David Hunt is the President and Chief Executive Officer of Critical Measures. Critical Measures is a management training and consulting firm that assists employers to harness the power of diversity to create more productive, profitable and inclusive workforces. 27 Over time, David has developed substantial expertise on diversity-related matters in law, business and medicine: HealthCare: Two thirds of Critical Measures work is in the area of cross-cultural healthcare. David is a sought-after national and international speaker on issues of racial and ethnic disparities in health care, the law of language access and medical disparities that result from globally mobile populations. He has delivered keynote presentations on such topics as The New Science of Unconscious Bias for the American Hospital Association and American Medical Association and The Law of Language Access for the American Bar Association. Together with physician partners from Harvard and the University of Minnesota Medical School, David has created some of the nation's first e-learning programs on cross-cultural medicine. Over 175,000 providers have now been trained on these programs. The Blue Cross Blue Shield Association of America selected Critical Measures as its primary vendor for services related to cultural competence in healthcare. In 2015, the AHA's Institute for Diversity Management in Health Care selected Mr. Hunt as the national consultant to its #123forEquity campaign to eliminate racial and ethnic disparities in healthcare. Prior to working in the diversity field, David worked as an attorney, specializing in employment and civil rights law. A writer, speaker and current events commentator, David has appeared on the McNeill-Lehrer News Hour and published numerous articles. He received his B.A. from Carleton College and his J.D. from the William Mitchell College of Law.
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