Spoken Language and Disability Access Requirements of the New Section 1557 Health Care Civil Rights Rules

Spoken Language and Disability Access Requirements of the New Section 1557 Health Care Civil Rights Rules

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Section 1557 of the Affordable Care Act (Section 1557) prohibits discrimination on the basis of race, color, national origin, language, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered, health programs or activities. See: 42 U.S.C. §18116 et seq. On May 6, 2024, HHS released the long-awaited the Section 1557 final rule, which becomes law on July 5, 2024, 60 days after Federal Register publication. Final Rule

The final rule contains several noteworthy sections applying to language and disability access. One of the important aspects of the final rule is the clear reminder that the Affordable Care Act (ACA) is based on six different federal statutes, each with its own decades’ worth of regulations, guidance, 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

In short, understanding and complying with the ACA involves compliance with the ACA’s six ancestral laws. Indeed, some existing requirements under Title VI of the 1964 Civil Rights Act, differ from those of the ACA. See: “Section 92.3(b) clearly states that this part does not limit or invalidate the rights, remedies, procedures, or legal standards under the statutes referenced (i.e., title VI, title VII, title IX, section 504, and the Age Act), consistent with the statutory text of section 1557 at 42 U.S.C. 18116(b).”

In the final rule’s preamble, OCR further notes that health care entities covered by Section 1557 have existing obligations under the ACA’s ancestors. Referencing the online accessibility requirements of the Rehabilitation Act, OCR states:

“Covered entities have existing effective communication obligations under section 504 and section 1557, which may include providing the notice in an alternate format or providing another auxiliary aid or service. Thus, if an individual is in need of the notice in an alternate format or through another auxiliary aid or service, that would likely already be required when it is necessary to ensure effective communication.”

Among the most important changes to Final Rule §92.201 (Meaningful access for individuals with limited English proficiency) is the inclusion of “companions with limited English proficiency.” Now, for the first time ever, companions of limited English proficient (LEP) people have their own language assistance rights and must be offered the same language access as the LEP patient, litigant, witness, airline or train traveler, etc.

OCR intended this new, expansive rule, align with the ADA’s longstanding companion effective communication requirement. For example:

“In many situations, covered entities communicate with someone other than the person who is receiving their goods or services. For example, school staff usually talk to a parent about a child’s progress; hospital staff often talk to a patient’s spouse, other relative, or friend about the patient’s condition or prognosis. The rules refer to such people as “companions” and require covered entities to provide effective communication for companions who have communication disabilities.

The term “companion” includes any family member, friend, or associate of a person seeking or receiving an entity’s goods or services who is an appropriate person with whom the entity should communicate.” See: ADA Requirements: Effective Communication, Department of Justice, 2020, Title II and Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-34 & 12181-89, 28 Code of Federal Regulations 36.504(a)(3), 45 Code of Federal Regulations §92-102 et. seq.

In the final rule’s definition section, §92.4, OCR states that “Machine translation means automated translation, without the assistance of or review by a qualified human translator, that is text-based and provides instant translations between various languages, sometimes with an option for audio input or output.”   SEE: §92-201 (3)

In the final rule, OCR changes current law so that now, ACA covered entities need not use a qualified human translator to vet ALL machine translations for accuracy. Instead, Section 1557 compliant entities must use a qualified human translator to review machine translations “… when the underlying text is critical to the rights, benefits, or meaningful access of an individual with limited English proficiency, when accuracy is essential, or when the source documents or materials contain complex, non-literal or technical language, the translation must be reviewed by a qualified human translator.”

The regulation does not specify which documents and written materials must be reviewed for accuracy other than using the nebulous phrase, “the underlying text is critical to the rights, benefits, or meaningful access.”

However, following HHS’s advice that existing laws, such as the ACA’s six ancestors, remain in full force, Title VI law may provide some answers about which materials and documents to prioritize. To ensure translation compliance, entities should analyze DOJ’s 2002 DOJ LEP Guidance (67 Federal Register § 41455 et seq.), and HHS’s 2003 LEP Guidance,(68 Federal Register §47311 et seq.)

In addition, according to the “Whole Act Rule,” the text of the final rule and its myriad interconnected parts should be construed as a whole.  “A legal instrument typically contains many interrelated parts, and thus the entirety of the document provides the context for each of its parts.” See: A GUIDE TO READING, INTERPRETING AND APPLYING STATUTES, Georgetown University School of Law (2017),

By reading all parts of the entire rule as connected parts of the whole rule, HHS federally subsidized entities will discover additional, important examples of text that “is critical to the rights, benefits, or meaningful access” of LEP people.

For the first time, federal health care civil rights regulations now require the appointment of a Section 1557 Coordinator (§92.7) who will be central to language and disability access compliance, as shown below:

“Among several obligations, the Coordinator is directly responsible for “… at minimum, the Section 1557 Coordinator: “(3) Coordinates effective implementation of the covered entity’s language access procedures as set forth in § 92.8(d); (4) Coordinates effective implementation of the covered entity’s effective communication procedures as set forth in § 92.8(e) and (6) Coordinates training of relevant employees as set forth in § 92.9, including maintaining documentation required by such section.” The Coordinator will be central to each health care organization’s compliance as the point person for implementing various policies, procedures and services required by the Final Rule.

The new rules further require, for the first time in law, the implementation of “written policies and procedures … designed to comply with the requirements of this part. The policies and procedures must include an effective date and be reasonably designed, taking into account the size, complexity, and the type of health programs or activities undertaken by a covered entity, to ensure compliance with this part.” See: § 92.8

Many commenters asked HHS to require Section 1557 covered entities to implement Language Access Plans in the Section 92.7 policies and procedures requirements. Instead, HHS chose to focus not on the words ‘Language Access Plan,’ but instead on the proven effectiveness of such plans’ contents in ensuring language access for LEP people and people with communication disabilities. In essence, HHS is saying, ‘Show me detailed compliant policies and procedures’ instead of just relying upon the word “plan” to suggest adherence to HHS’s rules.

According to the Preamble: “[C]overed entities with language access plans are often better prepared to provide individuals with LEP with meaningful access to their health programs and activities. For covered entities that have developed, implemented, and maintained language access plans, we highly encourage those covered entities to sustain that practice and to consider modifying their plans to include the elements required by § 92.8(d), to the extent it is not already included. To the extent a covered entity’s language access plan meets the requirements of § 92.8(d), a separate procedures document will not be required regardless of whether the document is referred to as a ‘‘plan’’ or ‘‘procedures.’’

  • 92.11 repeals the 2020 Notice regulations and restores the rules from 2016. The final rule requires a covered entity operating in all 50 States to aggregate the populations with LEP across those States to determine the top 15 languages spoken by individuals with LEP in its service area.

Notice must be provided informing individuals that free language assistance services and auxiliary aids and services are available to protect individuals with limited English proficiency (LEP) and individuals with disabilities. The notice must be provided in the top 15 languages spoken by individuals with LEP in the relevant state or states where the entity operates. The final rule restores the notice “taglines,” included in the original 2016 regulations.

Video Remote Interpreting (VRI) is a prime modality for using qualified interpreters to communicate with LEP people and people with disabilities. Poignantly, HHS states in the Preamble, that while VRI may not always be “the most appropriate method for providing language assistance services,” covered entities must ensure that “when such services are used, they meet a minimum quality standard.” See: Section 92-201(f).

What is new for VRI in the final rule is that HHS now makes VRI technical requirements for ASL communication the same when used for spoken language and sign language interpretation “to achieve parity with the VRI requirements found in § 92.202 regarding effective communication for people with disabilities” and to comply with the standards for spoken language “meaningful access” and the sign language “effective communication”  See: Final Rule Preamble

HHS notes that several court decisions and federal enforcement actions cases found that VRI was ineffective for people with disabilities “due to hospital staff’s lack of knowledge about how to operate the VRI equipment or technology issues with the equipment itself, including the attempted use of VRI during labor.”

To remedy these difficulties, HHS states that “if the use of VRI does not provide an individual equal opportunity to participate in or benefit from the service in question then the communication is ineffective and does not meet section 1557 [and ADA, Rehabilitation Act] requirements.” See: Final Rule Preamble and Sunderland v. Bethesda Hosp., Inc., 686 F. App’x 807 (11th Cir. 2017); Silva v. Baptist Health S. Fla., Inc., 303 F. Supp. 3d 1334 (S.D. Fla. 2018), aff’d in part, vacated in part, remanded, 838 F. App’x 376 (11th Cir. 2020); Juech v. Children’s Hosp. & Health Sys., Inc., 353 F. Supp. 3d 772 (E.D. Wis. 2018); Settlement Agreement Between the United States of America and Floyd Medical Center (2016)

The final rule retains the ADA’s effective communication requirements, including a hugely salient change in the law first promulgated in 2016, as described below:

“§ 92.202 Effective communication for individuals with disabilities. (a) A covered entity must take appropriate steps to ensure that communications with individuals with disabilities (including companions with disabilities), are as effective as communications with non-disabled individuals in its health programs and activities, in accordance with the standards found at 28 CFR 35.130 and 35.160 through 35.164. Where the regulatory provisions referenced in this section use the term ‘‘public entity,’’ the term ‘‘covered entity’’ shall apply in its place.”

The Final Rule mandates, as in 2016 and 2020, that all health care providers subsidized by HHS are covered by ADA Title II, the section that encompasses local and state governments, See: 28 CFR 35.130 and 35.160 through 35.164. This change is so significant because the Title II requirements set a much higher bar for compliance than those for Title III, which covers private business “places of public accommodations,” such as restaurants and hotels. In particular, Title II entities must give “primary consideration” to the communication preferences of deaf, hard of hearing, blind, and low vision people, a higher standard to meet than its Title III counterpart, as DOJ explains:

“When choosing an aid or service, title II entities are required to give primary consideration to the choice of aid or service requested by the person who has a communication disability. Title II entities must honor the person’s choice, unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden. But the Title II entity still has the obligation to provide an alternative aid or service that provides effective communication.”

See: DOJ’s 2020 Effective Communication Guidance

As with the Final Rule’s companion inclusion, the human vetting of some machine translations, and telehealth inclusion (see below), the “primary consideration” aspect of the final rule has not received much if any attention from commenters and the media. However, retaining the Title II inclusion of health care organizations is extremely important for ensuring “effective communications” in health care.

Three closing points.

  1. The Final Rule includes for the first time in law specific regulations for telehealth services to comply with language and disability access requirements. “§ 92.211 Nondiscrimination in the delivery of health programs and activities through telehealth services. A covered entity must not, in delivery of its health programs and activities through telehealth services, discriminate on the basis of race, color, national origin, sex, age, or disability.” Although providing language services has always been required of telehealth services operating in HHS subsidized hospitals, clinics, and similar facilities, the word “telehealth” had never been specifically included in federal law. Now, it has, eliminating any questioning of the application of Section 1557 to this communication method.
  2. For online accessibility, HHS adopts and incorporates DOJ’s accessible website regulations and guidance into the final rule: “§ 92.204 Accessibility of information and communication technology for individuals with disabilities.”
  3. Finally, the rule retains the requirement that 1557 financially assisted entities’ buildings and facilities open to the public be legally accessible to people with disabilities. See: §92-203: “No qualified individual with a disability shall, because a covered entity’s facilities are inaccessible to or unusable by individuals with disabilities be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any health program or activity to which this part applies.”

Given the final rule’s changes and breadth, there is much to do before the July 5 effective date and the end of the grace period, mostly one year, for compliance implementation. Moving forward, let’s get down to it because according to HHS: “the Department anticipates that all covered entities, or approximately 266,297 entities, would revise their policies and procedures under the final rule.Emphasis added

Watch for additional Bromberg & Associates webinars, presentations, and blogs on this very important topic. We recently presented a webinar introducing the new rules. We are planning more webinars over the next few months that will offer additional guidance, assistance, and Q&A’s on the new health care civil rights rules.

© Bruce L. Adelson 2024. 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 faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg & Associates exclusive.

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