Speaking the Language: New Rules for the ACA

As you probably know, the Department of Health and Human Services has issued its final non-discrimination rule for the Affordable Care Act (see, 45 C.F.R. Part 92, effective June 18, 2016). The final rule has generated a lot of discussion, particularly regarding the non-discrimination provisions for transgender patients, there are other provisions of the rule that you will need to be aware of.

One such provision is in section 92.201. That section, titled “Meaningful access for individuals with limited English proficiency,” calls on 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 in its health programs and activities.” An individual has “limited English proficiency” if her native language is not English, and if she “has a limited ability to read, write, speak, or understand English.” The exact steps that must be taken may vary. Evaluation of a covered entity’s compliance with the regulation must consider the nature and importance to the individual of the health program or activity and the particular communication at issue, and must also consider other relevant factors. The other factors considered include whether the covered entity has developed and implemented an effective written language access plan that is appropriate to its particular circumstances. All services must be offered free of charge, and must ensure that patient privacy is protected.

Existing federal law prohibits discrimination in health care services based on national origin. Facilities that receive federal funding are required to post notices of community service requirements in English, Spanish, and any other language spoken by 10% or more of the households in the facility’s service area. The new regulations go beyond these requirements by requiring that interpretation services be made available. The new regulation also does not have requirements regarding certain languages, but says that a covered entity must be prepared to offer language services for individuals “likely to be encountered.”

State laws may also set out additional language requirements. For example, in Colorado, long-term care facilities that have patients with limited English proficiency to arrange for a person who speaks a patient’s native language to facilitate daily communications and to attend assessment and care planning conferences.

Ensuring that all people have meaningful access to health care services is a goal shared by all providers. The new federal rule helps to achieve that goal, even in the face of the many linguistic barriers patients may face.

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