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ACA Section 1557: Open to Interpretation?

April 1, 2021
April 1, 2021

This blog post is taken from a recent Webinar featuring Jennifer Kearns, partner in the global law firm Dwayne Morris, LLP.

Section 1557 is the portion of the Affordable Care Act that prohibits discrimination. Covered entities include providers of general healthcare, health programs, or activities, which also receive federal funding, as well as insurance carriers that provide insurance benefits in the insurance marketplace. One important requirement concerns the availability of translation services.

Depriving Equal Access

Requiring someone with limited English proficiency (LEP) to communicate in English deprives them of equal access, because they may not have the same level of understanding as the person who is a native English speaker. Covered entities must take reasonable steps to provide meaningful access to the services or activities. This includes providing language assistance services using a qualified interpreter.

What is a qualified interpreter? Can you can use your own staff? To be qualified interpreters under Section 1557, staff members must be fully proficient in both languages. This means they must be able to speak equally well in English and the other designated language and be able to accurately describe medical terms and all communications. They also need to be able to communicate impartially and directly in the primary language. You may also be required to provide written translation assistance. The best practice is to retain outside interpreter services.

Suppose an adult woman comes to your ER. She appears to be intoxicated, disoriented, and in pain. The woman is from China and does not speak English. She’s accompanied by her teenage son, who speaks both English and Chinese, but he also appears to be intoxicated.  Can you rely upon interpretation from the son? The answer is no, because you are unable to certify the son’s qualification.

The rule states you cannot rely upon a minor to be the interpreter unless it is truly a life or death situation. Had the woman been unconscious and not breathing, you could rely on the minor son for information. Additionally, the rule states the provider or the covered entity cannot rely on the patient’s preferred interpreter if there are any concerns about confidentiality issues, the interpreter’s competence, or anything else bringing his qualification into doubt.

Continuing with this example, let’s say the Chinese-speaking patient is accompanied by her adult son who speaks English fluently, but who does not seem to be following the conversation and does not appear to be responding adequately to medical personnel. For situations such as these, it’s very important to arrange in advance for qualified interpreters.

Tagline Posters

You must also provide LEP patients and their guardians with a tagline notice. The tagline provides the phone number they can call for free translation services. A poster must include a statement reading, literally, “Attention, if you speak (insert language here), language assistance services are available to you, free of charge. Please call (phone number).” The poster must repeat that same sentence in multiple languages spoken in your area and provide the phone number for a translator who speaks the respective language. This information must be posted in your place of business and on your website.

These postings alone do not fulfill your obligation under section 1557. In addition, all “significant” publications and communications must include these taglines. Examples of significant publications include consents for treatment, admission and intake forms, and insurance claim forms. Any communications regarding individuals’ rights or benefits and all correspondence with the patient are considered significant publications.

In the case of small-sized significant publications, you need only include a non-discrimination statement in English with taglines for the top two foreign languages spoken in your service area. Examples of things not considered significant are radio and TV advertisements, appointment cards, prescriptions, envelopes, and business cards.

Complaints

So what happens if a patient files a complaint saying, “I was treated differentially and badly because I was not a native English speaker?” The HHS Office of Civil Rights issues a notice asking for a written position statement responding to the allegations, followed by an investigation based upon both the complaint and the response of the provider. They also have the power to conduct on-site interviews and interview any employees who were present that day.

If OCR finds a violation, they will first mediate between the covered entity and the aggrieved individual. If they find there was a violation, but they can’t reach a resolution, OCR may require corrective action. They can also issue an order requiring the covered entity to pay monetary damages to the person who filed the charge. If you fail to implement the prescribed corrective actions, this can ultimately affect your ability to receive federal funding. If the violation is egregious, OCR can refer the matter to the U.S. Department of Justice for further enforcement proceedings, including civil lawsuits.

Section 1557 Checklist:

  • Engage qualified interpreters.
  • Assess whether you have qualified interpreters on your staff.
  • Train staff regarding proper actions with limited English proficiency patients.
  • Display a tagline poster in prominent places in your place of business and on your website.
  • Include required taglines on significant communications.

To view a recording of the full webinar, please click here.