Health and Human Services (HHS) published its final proposed rule implementing the anti-discrimination provisions of the Affordable Care Act (ACA), which includes regulations for serving Limited English Proficient (LEP) patients. This proposed rule is intended to advance health equity and reduce disparities in health care.

HERE’S WHAT YOU NEED TO KNOW:
1. Covered entities are required to post a notice in the top 15 languages spoken by LEPs nationally, indicating that communication assistance is available.
(A covered entity is any entity that operates a health program or activity that receives federal financial assistance under programs operated by HHS.)¹

The top 15 languages spoken by LEPs in the US are:

  • Spanish
  • Korean
  • Arabic
  • Portuguese
  • Italian
  • Chinese
  • Tagalog
  • French Creole
  • Polish
  • German
  • Vietnamese
  • Russian
  • French
  • Japanese
  • Farsi

People with disabilities are also covered under the proposed rule, as it requires covered entities to provide effective communication by providing access to auxiliary aids and services, including alternative formats and sign language interpreters. Covered entities must post information about these services as well.

2. Covered entities may use machine translation for written documents and websites, but post-translation review by a qualified translator is required.

  • HHS rejected insistence by some to ban machine translation because “such a requirement may unintentionally stifle innovation in this rapidly developing area.”²
  • HHS also asserts that “depending on the language at issue as well as the content of the translation, some translation technologies are advantageous to facilitate the translation of written content when used along with a qualified translator who independently verifies the accuracy and quality of the translation,” such as translation memory software.³
  • The requirement to have a qualified translator review the machine translations could check hospitals’ prior use of MT without quality control. No prior law or directive has prohibited it in the past.

Covered entities “must ensure compliance with existing laws in addition to the new ACA rules, including state laws that may be more restrictive than the ACA regulations.”

  1. Kim C. Stanger. “New ACA Anti-Discrimination Rules: Language Assistance for Non-English Speakers.” May 26, 2016. www.hollandhart.com. Accessed May 2016.
  2. Sylvia Burwell. “Nondiscrimination in Health Programs and Activities.” May 11, 2016. www.federalregister.gov. Accessed May 2016.
  3. Sylvia Burwell. “Nondiscrimination in Health Programs and Activities.”
  4. U.S. Department of Healthy & Human Services: Office for Civil Rights. “Nondiscrimination in Health Programs and Activities Proposed Rule: Section 1557 of the Affordable Care Act.” www.hhs.gov. Accessed May 2016.
  5. Kim C. Stanger. “New ACA Anti-Discrimination Rules: Language Assistance for Non-English Speakers.”