Several weeks ago, the Department of Health & Human Services (HHS) Office for Civil Rights (OCR) issued a “Dear Colleague” letter reiterating obligations that covered entities have under the May 2024 final rule related to language access requirements under Section 1557 of the Affordable Care Act (ACA).
Section 1557, the non-discrimination provision of the ACA, prohibits discrimination on the basis of race, color, national origin, sex, age or disability in specified health programs or activities, including those that receive federal financial assistance. The letter reiterates the final rule’s primary requirements that covered entities must provide meaningful language access to individuals prior to the July 5 deadline.
Due to HHS’s infrequent use of such letters, ACR members are advised that the release of the letter signifies that the HHS is focused on applying and enforcing the language access provisions of Section 1557. The key provisions are as follows:
- Language Assistance Services. Language assistance services must be provided free of charge and protect a patient’s privacy and independent decision-making abilities. Interpreters must convey information in such a way that patients understand the consequences of consenting to or rejecting treatment, and in a setting that preserves patient privacy.
- Use of Qualified Interpreters and Translators. Interpreters and translators must maintain patient confidentiality and meet certain regulatory qualifications that demonstrate proficiency in writing and understanding English and at least one non-English language. They also must demonstrate that they can translate effectively, accurately and impartially to and from English and the non-English language, including any specialized vocabulary and terms, while retaining the tone, sentiment and emotional level of the original statement. They must adhere to principles of ethics. If an interpreter and individual with limited English proficiency (LEP) know each other, a different interpreter should generally be requested. Covered entities may not require individuals with LEP to provide—or pay for—their own interpreters.
- Use of Bilingual Staff. The OCR emphasized that relying on an employee who self-identifies as proficient in the target language is not sufficient to meet the Section 1557 translation requirements.
- Use of Machine Translation. If a covered entity uses machine translations for critical documents, the translations must be reviewed by a qualified human translator to ensure accuracy as soon as practicable. The OCR appears to be less concerned about using machine translation when there is no risk of impacting the rights of individuals being served, but the translation should include a warning that it may contain errors.
- Emergency Circumstances. Covered entities should generally not rely on unqualified individuals to provide interpretation or translation services except in two circumstances. First, an unqualified adult or minor may temporarily provide language assistance services while a qualified interpreter is being located if the circumstances involve an imminent threat to the safety or welfare of an individual or the public. In such an instance, when a qualified adult arrives, that person should confirm or supplement the initial communications. Second, if an individual with LEP specifically and privately requests that an unqualified adult (but not a minor) serve in this role, a qualified interpreter should confirm the nature of the request and that reliance is appropriate in the circumstance.
- Notices of Nondiscrimination and Availability. Annually, covered entities must provide a Notice of Nondiscrimination and a Notice of Availability of language assistance and other services to participants, upon request, and must post such notices in physical locations and on the entity’s website, as applicable. The Notice of Availability must also be provided in significant written communications, such as applications, notices of eligibility and communications related to public health emergencies.
- Language for Notice of Availability. The OCR reiterated that the Notice of Availability must be provided in English and at least the 15 most commonly spoken languages by individuals with LEP in the relevant state or states of the covered entity’s operations. For entities operating in multiple states, the Notice of Availability must reflect the most commonly spoken non-English language in each of the applicable states. Top languages can be determined here.
ACR/ARP members should email the ACR’s advocacy team at [email protected] with any questions and comments. We will monitor the rule’s implementation and serve as an educational resource for members on its provisions and the impact they will have on rheumatology.
