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Northwest OH Legal Blog

Friday, September 30, 2016

THERE’S MORE TO THE NEW NON-DISCRIMINATION RULE

MEANINGFUL ACCESS FOR INDIVIDUALS WITH LIMITED ENGLISH PROFICIENCY

On May 18, 2016, the Department of Health and Human Services (HHS) published a final rule to implement Section 1557 of the Affordable Care Act (ACA).  This comprehensive rule prohibits discrimination in health coverage based on race, color, national origin, age, disability, and sex. Some of the provisions incorporate federal non-discrimination policies.  These provisions incorporate existing federal non-discrimination policies intertwined with some new protections.

Access for Individuals with Limited English Proficiency (LEP)

While the spotlight in the media regarding these new protections has been on the prohibition of sex discrimination which now includes gender identity discrimination in its definition, other very significant anti-discrimination provisions are included in the expansion of Section 1557 of the ACA.  Under 27 C.F.R. Section 92.201(a), “Covered Entities” must prove that they are taking reasonable steps to provide access to any individual with Limited English Proficiency (LEP).  Covered Entities are defined in the regulations as health programs and activities that receive Federal financial assistance from HHS, health programs and activities administered by HHS and State-based Marketplaces established under the ACA. 

This incorporation of well-established portions of Title VI of the Civil Rights Act and guidelines within the expansion of Section 1557 broadly sets out the need for policies with specific requirements related to language assistance services.  The HHS Office of Civil Rights (OCR) has been very clear that it will gauge a Covered Entity’s compliance with this provision by taking into account the nature and importance of the health program or activity and the communication at issue to the person with LEP.  However, while it has not been specific in how Covered Entities should structure language assistance services, the OCR has noted that it will consider factors, such as the Covered Entity’s good faith efforts in developing an effective written language access plan.  For purposes of this latest expansion of Section 1557 of the ACA, HHS did not specify minimum criteria for the written language access plan to be provided for non-English languages. 

So What Should Plan Sponsors Do?

Consequently, since the HHS imposed very few iron clad requirements as to how a Covered Entity must prove its compliance to provide access to individuals with Limited English Proficiency (LEP), the written language access plan may be the most convincing evidence of its good faith efforts. 45 C.F.R. Section 92.201(b)(2) gives some guidance by noting that effective language access plans often address the following:

  1. How the entity will determine an individual’s primary language;
  2. Whether the entity identifies a telephonic interpretation service;
  3. Whether the entity identifies a translation service;
  4. Whether the entity is able to identify the types of language assistance services that may be required;  and
  5. Whether the entity specifically identified any documents for which written translations should be routinely available. 

In addition to the regulatory guidance specified, some other policies and procedures are specifically required of Covered Entities to substantiate their good faith efforts to provide access to benefits’ communications, documents and updates for those with LEP.  Covered Entities must send an initial notice globally to all plan participants and thereafter attach taglines to any significant plan communications, offering communications’ assistance for individuals with limited English proficiency.  These notices and taglines must be available in the top 15 languages spoken in the Covered Entity’s state. OCR has translated a simple non-discrimination notice and taglines into dozens of languages, and makes those translations available on its website at:  https://www.cms.gov/CCIIO/Resources/Regulations-andGuidance/Downloads/Appendix-A-Top-15.pdf

What Languages are Spoken in Ohio?

You may be wondering what languages are spoken in Ohio and why Ohio’s list is so much different than other states in the United States.  The OCR used the U.S. Census Bureau’s (Bureau) American Community Survey’s (ACS) data set entitled, “Language Spoken at Home by Ability to Speak English for the Population 5 Years and Older.” The tables for this data set display the estimated number of individuals, who speak non-English languages in each State and who speak English less than “very well,” which OCR used as a proxy for the population with LEP.  The most widely spoken non-English languages in Ohio are listed as follows in descending order according to the size of the speaking populations:

1. Spanish

2.  Chinese

3.  German

4.  Arabic

5.  Pennsylvania Dutch

6.  Russian

7.  French

8. Vietnamese

9.  Cushite

10.  Korean

11.  Italian

12.  Japanese

13.  Dutch

14.  Ukrainian

15.   Romanian

Should Plan Sponsors Pay Attention to this Rule Now?

In addition, the rule’s notice requirements specify that the posting of the nondiscrimination notice and taglines are effective within 90 days of the effective date of the Section 1557 expansion rules (July 18, 2016).  That would suggest that most health benefits plan sponsors in Ohio should consider sending, at the very least, some version of the sample notice provided by HHS in English and some of the most widely used non-English languages known to be used among its employees, plan members, dependents and beneficiaries by October 18, 2016.  While HHS does not require plan sponsors to use its list, it suggests that sponsors have a verifiable justification for selecting preferences for non-English languages accommodated among its members, spouses, dependents and beneficiaries. 

Many employers and plan sponsors may be fully aware of employees who do not speak, read or write English and know their primary non-English languages.  However, all employers and plan sponsors must be sure to offer accommodations and translation services so all employees will be aware of their rights under the LEP provisions within the expansion of Section 1557 of the ACA.   Employers and plan sponsors should seek legal counsel to ensure their actions show good faith compliance with these provisions.


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