Late in May, the Department of Health and Human Services posted a draft of a new, proposed regulation to implement § 1557 of the Affordable Care Act. Section 1557 covers non-discrimination in the provision of health care, and includes the provision of language access. It is implemented through 45 CFR Part 92, which was finalized in 2016. The new proposed regulation changes non-discrimination protections for LGBTQ individuals, termination of abortions, and language access. The rationale for the changes to language access is to save money for insurers and pharmacy benefit managers.
The rationale for the changes to language access
Our colleagues at Certified Languages International developed a thorough analysis of the proposed changes to the regulations on language access. Of particular concern are the proposals to remove the requirements for a section 1557 compliance coordinator for organizations with more than 15 employees, which would affect all types of non-discrimination protection under the Affordable Care Act, as well as the removal of the requirement for written notices and “taglines” in other languages which help inform people that language access is available if the need it.
Now, what are the next steps?
Now, what are the next steps? First, JNCL-NCLIS is working closely with the National Health Law Program (NHeLP) to monitor the progress of this proposed rule. The Department of Health and Human Services must publish a “Notice of Proposed Rule Making” in the Federal Register, with at least 60 days to accept public comments on the proposed regulation. When that happens, we will let you know, and we will have an action alert ready to go for you to submit comments on the proposed rule. We’re working on those comments now, with NHeLP, and we will be circulating the draft to our members soon. When the time comes, it will be incredibly important for our community to submit thoughtful, detailed, and well-supported comments. This matters because, by law, the government must respond to all of the comments in a substantive manner. This process can take up to a year, and given the controversial subject matter of the other two areas of non-discrimination policy that the DHHS is trying to change, we expect a very large number of comments.
After resolving the comments, we expect the DHHS will publish a final rule. It’s an open question as to how much the draft rule will change in that process. We will be in close contact with you and with our coalition partners throughout this process.
Finally, the bottom line is that Title VI of the Civil Rights Act of 1964 and Section 1557 of the ACA remain in place, as do several US Supreme Court decisions on language access. The proposed rule can only address the agency’s interpretation and implementation of Section 1557 but can’t change the underlying law (only Congress can enact changes to 1557 which would have to be signed by the President). We have a long way to go, and it may be nerve-racking, but rest assured that there are many of us here in DC and nationally fighting for language access.
Have questions about the new Section 1557 revisions and how they might affect you? Let us know.
Additional resources: check out the full Section 1557 text online ; and take a look at the OCR’s fact sheet.