By Bruce Adelson, Esq.
The 2020 IEO Language Access in the New Normal conference brought together hundreds of people from across the language services industry to discuss myriad issues of concern and importance. The virtual audience generated pages and pages of excellent dialogue, comments, questions, and professional recommendations.
With the benefit of time to reflect about the conference and presentations, I wanted to provide some additional myth-busting information about the new health care civil rights rules, Section 1557 of the Affordable Care Act (ACA).
For example, although the new rules mostly eliminate the requirements for public notices about language services, federal law still requires such notices, many comments to the contrary notwithstanding. For your information, I provide legal citations and case names to facilitate and enable more accurate understanding of the state of federal health care civil rights law.
Uniquely among federal laws, the Affordable Care Act incorporates multiple other federal laws into its statutory scheme. Section 1557 prohibits several types of discrimination: race, color, language, national origin, disability, sex, and age. The Section’s mandates originate from six different federal statutes, each with its own regulations, guidance, advisories, directives, jurisprudence, and history:
- Americans with Disabilities Act (ADA);
- Rehabilitation Act of 1973;
- Title VI of the Civil Rights Act of 1964;
- Title VII of the Civil Rights Act of 1964;
- Title IX of the Educational Amendments of 1972; and
- Age Discrimination Act of 1975
Title VI of the Civil Rights Act of 1964 (Title VI) (45 Code of Federal Regulations (CFR) 80 and 42 U.S. Code § 2000 d) requires federally subsidized health care providers, state, and local governments to provide effective language assistance to people who are not English proficient. Title VI requires such federally subsidized organizations to translate Notices of Non-Discrimination into applicable non-English languages.
For example, in two recent HHS Title VI enforcement agreements, HHS required the investigated provider to give “… notice of the right to free Language Assistance to LEP persons in a language they can understand.” See: U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES and MEE MEMORIAL HOSPITAL Resolution Agreement Transaction Numbers: 12-143846, 13-151016 & 13-153378 (2016), SETTLEMENT AGREEMENT BETWEEN U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES OFFICE FOR CIVIL RIGHTS, SOUTHEAST REGION AND ALABAMA DEPARTMENT OF HUMAN RESOURCES (2017)
Title VI further requires the translation of “vital documents” into applicable non-English languages. Vital documents are part of the nearly 20-year old Four-Factor Analysis referenced in the new Section 1557 regulations. As defined by the above Mee Memorial Hospital enforcement agreement, “vital documents” includes “notices pertaining to eligibility for benefits,” such as the Notice of Non-Discrimination and Language Assistance:
“Vital Documents shall include, but are not limited to: applications; consent forms; complaint forms; letters or notices pertaining to eligibility for benefits; letters or notices pertaining to the reduction, denial or termination of services or benefits or that require a response from the LEP person; written tests that test competency for a particular license, job, or skill for which knowing English is not required; documents that must be provided by law; and notices regarding the availability of free language assistance services for LEP individuals.” Emphasis added
Additionally, the U.S. Department of Health and Human Services provides the following in its 2003 Title VI and Limited English Proficiency guidance, which is also incorporated into the new Section 1557 rules:
“Once a [federal funding recipient] recipient has decided, based on the four factors, [sic] that it will provide language services, it may be important for the recipient to let LEP persons know that those services are available and that they are free of charge.
Recipients should provide this notice in a language LEP persons will understand. Examples of notification that recipients may want to consider include:
- Posting signs in intake areas and other entry points. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in intake areas or initial points of contact so that LEP persons can learn how to access those language services. This is particularly true in areas with high volumes of LEP persons seeking access to certain health, safety, or public benefits and services, or activities run by HHS recipients. For instance, signs in intake offices could state that free language assistance is available. The signs should be translated into the most common languages encountered. They should explain how to get the language help.
- Stating in outreach documents that language services are available from the recipient. Announcements could be in, for instance, brochures, booklets, and in outreach and recruitment information. These statements should be translated into the most common languages and could be ‘‘tagged’’ onto the front of common documents.
- Working with community-based organizations and other stakeholders to inform LEP individuals of the recipients’ services, including the availability of language assistance services.
- Using a telephone voice mail menu. The menu could be in the most common languages encountered, and provide information about available language assistance services and how to get them.
- Including notices in local newspapers in languages other than English.
- Providing notices on non-English language radio and television stations about the available language assistance services and how to get them.
- Presentations and/or notices at schools and religious organizations.”
Federal Register /Vol. 68, No. 153/Friday, August 8, 2003
The new §1557 rules also removed the prior recommendation that federally subsidized health care providers have Language Access or Limited English Proficiency Plans to inform and enable their provision of federally required language services. However, contrary to many commentators, this Plan requirement remains in federal law, through court decisions, federal guidance from HHS, the Department of Justice (DOJ), and virtually every federal agency, and federal enforcement actions, such as DOJ’s 2019 Title VI action against the Louisiana Supreme Court in which the Court is required to adopt and implement a Language Access Plan covering all Louisiana courts.
However, it is the 2016 ruling of a federal court that is most appropriate and binding for informing everyone that such Plans are legally required. In this case, several limited English proficient parents sued the School District of Philadelphia alleging various forms of discrimination, including national origin and language.
In response, the federal court held:
“For over 45 years, ED [U.S. Department of Education] has put school districts on notice that Title VI requires providing LEP parents meaningful access to information about school programs and activities. In its 1970 Memorandum interpreting Title VI, ED explained that “[s]chool districts have the responsibility to adequately notify national origin-minority group parents of school activities which are called to the attention of other parents. Such notice in order to be adequate may have to be provided in a language other than English.” 35 Fed. Reg. 11,595.
Given the importance of the District’s educational programs, the large number of LEP parents in the District, and the frequency with which they need access to such programs, application of the four-factor analysis clearly requires “an effective LEP plan [that] includes the translation of vital written materials into the language of each frequently-encountered LEP group eligible to be served and/or likely to be affected by the recipients’ program.” Emphasis added
T.R. v. School District of Philadelphia (U.S. District Court for the Eastern District of Pennsylvania, 2016)
In examining and evaluating the new §1557 rules, it is vitally important to remember that the Affordable Care Act is built upon six other federal laws. These laws, like Title VI, remain unchanged. Their multiple requirements remain legally binding on federally subsidized health care and other organizations. Before taking commentators’ opinions at face value, remember that the law is complex, with many twists and turns. The new rules are part of this complexity. They are much more than meet the superficial eye and indeed retain substantial legal requirements against health care discrimination.
© Bruce L. Adelson 2020. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches organizational culture, implicit bias, cultural and civil rights awareness.