Ensuring Compliance Under Section 1557 of the A.C.A.
Good communication is a key element to providing comprehensive health care. However, language barriers can quickly cause a steep disconnect between health care providers and patients, especially when providers are not prepared to communicate with non-English speakers or struggle to even recognize what language the patient is speaking. In these situations, providers may feel overwhelmed as to how best to care for patients while accommodating each patient’s unique needs. To help provide clarity regarding and uniformity in application of anti-discrimination policies, the U.S. Department of Health and Human Services (“DHHS”) recently released a final ruling providing guidance on Section 1557 of the Affordable Care Act (“ACA”). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability, or any combination of these traits, by health programs or activities receiving federal financial assistance. North Dakota echoes this sentiment in its own anti-discrimination laws.
Section 1557 applies to all health care providers receiving federal funding, whether it be a hospital, clinic, insurance issuer, state Medicaid agency, physician’s practice, or home health care agency. The final ruling applies to both in-person and telehealth services and captures health programs and activities administered by DHHS and the health insurance marketplace.
One of the primary goals of Section 1557 is to prohibit discrimination against non-English speakers seeking health care services. DHHS stresses there should be no difference in the standard and level of care because of a patient’s language proficiency. Accordingly, covered physicians and entities must take reasonable steps to provide meaningful access to patients with limited English proficiency.
Language assistance services must be accurate and provided free of charge in a timely manner while maintaining the patient’s privacy and independence. Best practices dictate covered entities have a Language Access Plan in place outlining procedures for how to implement the ACA’s requirements. This will not only provide staff with a plan of action but also demonstrate an effort to comply with ACA requirements. DHHS has published a Language Access Plan to help covered entities get started on enacting their own policies and procedures. Generally, a Language Access Plan should outline policies on how to determine a patient’s primary language, phone numbers and contact information of qualified translation and interpretation services, and list where taglines, nondiscriminatory notices, and other language service information are posted.
To comply with Section 1557, covered entities are required to conspicuously post taglines. Taglines are short statements written in the Top 15 non-English languages spoken in the entity’s state explaining the availability of free language assistance services. According to the most recent information from the Centers for Medicare & Medicaid Services, the Top 15 non-English languages requiring taglines in North Dakota are: Spanish, German, Chinese (Mandarin), Cushite (Oromo), Vietnamese, Bantu (Kirundi), Arabic, Swahili, Russian, Japanese, Nepali, French, Korean, Tagalog, and Norwegian. Taglines must also provide the contact information to obtain such services. Taglines must be printed in a readable size and font, and must be posted where the physician or entity staff interacts with the public, such as reception desks and waiting rooms or on the home page of the entity’s website.
Aside from language requirements, covered entities must notify the public of its nondiscrimination requirements, as well as the availability of auxiliary aids and services. As always, consult with an experienced attorney regarding specific legal questions to ensure that your practice is in full compliance with all applicable laws and regulations.
Briana L. Rummel, Medical Malpractice Attorney & Bridget B. Grathwohl, Summer Associate