On May 24, 2023, the U.S. Department of Health and Human Services (HHS) released its first Language Access Annual Progress Report (the Report) reflecting on its advancements since the 2022 HHS Equity Action Plan (Equity Plan) and relaunch of the Language Access Steering Committee. The Report provides a useful framework for providers to understand the Office for Civil Rights (OCR) and HHS’ increasingly rigorous expectations for language access for those with limited English proficiency (LEP), aiming to eliminate barriers impeding access to quality healthcare.
As discussed in McGuireWoods’ June 5, 2023 alert, similar to LEP access, the U.S. government’s recent settlements with healthcare providers who allegedly denied deaf and hearing-impaired patients or their caregivers auxiliary aids for effective communication illustrate OCR and HHS’ priority in ensuring effective communication for individuals. The Report, coupled with OCR and HHS’ focus on meaningful access, underscores the Biden administration’s push for diversity, equity, and inclusion (DEI) efforts more generally. The Report reminds providers that it is imperative to provide meaningful access to HHS programs, including for LEP persons. Read on to understand how the Biden administration’s DEI goals impact providers, what providers can expect from HHS and OCR following the Report, and four tips for providers to comply with OCR’s more stringent standards.
Biden Administration, OCR, and DOJ Prioritize DEI
The Report reflects on the Equity Plan, created pursuant to President Biden’s first Executive Order 13985 (EO), issued Jan. 20, 2021, and titled Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. The EO revoked President Trump’s Executive Order 13950 (EO 13950), issued Sept. 22, 2020, which rolled back DEI efforts for recipients of federal funding and established a hotline to investigate complaints of violations of EO 13950. EO 13950 was found unconstitutional, and its enforcement stopped with a nationwide preliminary injunction. Understanding the previous regulations under which OCR and HHS operated highlights the disparate approach expected from DOJ and OCR in enforcing anti-discrimination through DEI efforts.
OCR’s Report stresses its alignment with President Biden’s EO embracing a “whole-of-government” approach to achieving equity, placing the onus on the U.S. government and federal agencies, including HHS and OCR, to “…create opportunities for the improvement of communities that have been historically underserved.” Such underserved communities include: “Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.” In response to the EO, HHS released the Equity Plan seeking to advance equity as a “central component of the decision-making framework that all agency functions are routed through.” Notably, the Equity Plan set language access for LEP individuals as its first priority. The Equity Plan highlighted that recipients of HHS federal financial assistance must “take reasonable steps to provide meaningful access to their programs by individuals with LEP.”
Guidance for Providers
The Report provides useful guidance for providers as the kinds of auxiliary aids available to providers evolve, and as OCR and HHS continue to robustly enforce anti-discrimination laws incorporated through Section 1557 of the Affordable Care Act (Section 1557):
- Provide notice that auxiliary aids are available. The Report emphasizes that providers bear the responsibility for providing notice to individuals that they are entitled to auxiliary aids free of charge. In an apparent return to the Obama administration’s 2016 final rule regarding Section 1557, the Report also states that such notices “should be translated into the top 15 languages spoken in the state.” OCR has published a table listing each state’s top languages; however, a covered entity may use another resource in concluding what the top 15 languages are, so long as the languages chosen are reasonably based. For more information regarding notice and the Biden administration’s Aug. 4, 2022, Section 1557 proposed rulemaking (Proposed Rule), please refer to McGuireWoods’ June 5, 2023 alert. Please also refer to McGuireWoods’ Oct. 4, 2016 alert for further information on providing notice, including how extensive notice must be for different communications, although the notice described in this alert is not currently required after the Trump Administration’s Section 1557 final rule.
- Ensure patients’ caretakers and companions have meaningful access. Just as McGuireWoods’ June 5, 2023 alert explained, the Report requires caretakers and companions, in addition to patients, be provided meaningful access to HHS programs, including services reimbursed by government payors. This means a provider may be required to provide different auxiliary aids to a patient and caretaker, and must ensure that the aids provided adequately meet the specific needs of each appointment and communication. Some appointments or communications may require more extensive auxiliary aids to address more serious concerns. For example, a preoperative appointment to an invasive surgery would require deep, careful communication, while a message communicating that a prescription was successfully transferred to the patient’s new pharmacy, while important, could be less extensive.
- “Meaningful access” will shift to a higher burden. The Report noted that, as access to real-time translation increases, for example, through telephonic interpreters, what qualifies as “meaningful access” will be impacted so that providers are expected to provide more, and not less, for patients and their caretakers: “Our approach is that the highest bar should apply.” While the Report did not mention specific ways that these evolutions in auxiliary aids will impact providers, McGuireWoods will continue to monitor forthcoming guidance and provide updates. In the meantime, expect that advancements in communication through technology will be considered as OCR and HHS assess whether meaningful access has been provided for LEP and disabled patients. Therefore, providers should stay educated and utilize advancements in such technology to ensure patients understand their care.
- Develop written language access procedures for LEP individuals. The Report references the Proposed Rule, which would require providers, covered entities, and HHS “…develop and implement written language access procedures to support compliance with requirements to take reasonable steps to provide meaningful access to individuals with LEP who are affected by their health programs and activities.” Meaningful access means LEP or disabled individuals can communicate as effectively as their counterparts without disability or language barriers. While the Report does not offer concrete guidance for developing language access procedures, the Proposed Rule provides a more detailed description of what such policies must include.
At a minimum, the written language access procedures must include all of the following:
- A process for providing language assistance services.
- Current information detailing the contact information for the Section 1557 coordinator (a designated employee responsible for overseeing Section 1557 compliance, including investigating reported grievances).
- Criteria employees use to determine whether an individual is LEP.
- How to obtain qualified interpreters and translators (provided free of charge by the covered entity).
- Names of any qualified bilingual staff members.
- List and location of any electronic and written translated materials (including the languages available and publication date).
OCR’s ongoing efforts in this Report and enforcement actions on behalf of LEP and disabled patients and caregivers, underscores OCR’s concerted effort to increase access to quality healthcare. Further, OCR clearly grounds this effort in the Biden administration’s “whole-of-government” approach. While the Proposed Rule has not yet been adopted, OCR’s statements suggest providers can anticipate many such positions proposed will be adopted and will remain critical to the Biden administration.
For more information about the Report, developing Section 1557 policies and procedures, or offering appropriate auxiliary aids and interpreter services, please contact one of the authors of this article.